The Presto

PARDEE, Circuit Judge (after stating the facts as above). The exceptions in the district court involved more than the question of jurisdiction, and, although the libel was dismissed in the district court for want of jurisdiction, the question of jurisdiction was not certified. Under these circumstances, and considering McLish v. Hoff, 141 U. S. 661, 12 Sup. Ct. 118, we are of opinion that we may entertain jurisdiction of this appeal, if'the same is properly brought. Section 13 of the act of congress approved March 3, 3891 (26 Stat. 826), creating the circuit court of appeals and defining its jurisdiction, provides as follows: “And all provisions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the method's and system of appeals and writs of error provided for in this act and in respect of the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error.” Section 1000, Rev. St., is as follows: “Every justice or judge signing a citation on arty writ of error, shall except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and slays execution, or all costs only where it is not a supersedeas as aforesaid.” The fact that the appellant is a pauper does not, of itself, relieve Mm of the necessity of giving an appeal bond, and the general rule is that there must be express statutory authority for an appeal in forma pauperis. Butler v. Jarvis, 117 N. Y. 115, 22 N. E. 561; Halloran v. Railroad Co., 40 Tex. 465; Fite v. Black, 85 Ga. 413, 11 S. E. 782. [524] The contention in this case is that the act of congress approved July 20, 1892 (27 Stat. 252, c. 209), as follows: “Section 1. Tiiat any citizen of the United States entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any sucli suit or action witliout being required to prepay fees or costs, or give security therefor before or after bringing suit or action, upon filing in said court a statement under oatli, in writing, that, because of his poverty, he is unable to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by shell suit or action, and setting forth briefly the Dature of liis alleged cause of action. ' “Sec. 2. That after any such suit or action shall have been brought, or that is now pending, the plaintiff may answer and avoid a demand for fees or security for costs by filing a like affidavit, and wilful false swearing in any affidavit .provided for in this or the previous section, shall be punishable as perjury as in other cases. “Sec. 3. That the officers of court shall issue, serve all process, and perform all duties in such cases, and witnesses shall attend as in other cases, and the plaintiff shall have the same remedies as are provided by law in other cases.” —Applies to cases on appeal as well as to the commencement and prosecution of a suit in the court of original jurisdiction. Stress is laid upon the terms, “may commence and prosecute to conclusion,” in the first section, and “the plaintiff shall have the same remedies as are provided by law in other cases,” in the third section. In our opinion, the statute does not warrant the construction claimed. Even if express statutory authority is not required to dispense with an appeal bond, we think that the object and purpose of the statute in question was to give a poor person, unable to advance ■costs, an opportunity to have liis case inquired into by a responsible court; and we cannot infer that it was the intention of congress that after the commencement and prosecution of the case through the court of original jurisdiction the case could thereafter be carried through all the appellate courts, without security for the costs and fees necessarily incurred. It would be a decided injustice to the adverse party to make him responsible for all costs in the court of original jurisdiction, and thereafter, without the usual security, give his opponent the.right to carry him through the appellate courts. There are decisions in the ■supreme court which hold that the omission to give a bond for costs at the time the appeal was taken does not necessarily avoid the appeal, and the appellant may he allowed to file a bond afterwards, within a reasonable time. Anson v. Railroad Co., 23 How. 1; Davidson v. Lanier, 4 Wall. 447, 454; Seymour v. Freer, 5 Wall. 822. The affidavit filed in the court bélow shows that the parties desiring to appeal cannot give a bond. It seems, therefore, a useless delay to give them time within which to file a bond. The appeal is dismissed.