82 F. 865 | U.S. Circuit Court for the District of Vermont | 1897
The defendant, on notice, procured an order for a cost bond to be tiled by November loth next. An act of July 20, 1892, provides that any citizen of the United States entitled to sue in any court of the United States may do so “without: being requirt'd to prepay fees or costs, or give security therefor before or after bringing- suit or action upon filing in said court it statement under oath 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 give security for the same, and that he believes lie is entitled to the redress lie seeks by such suit or action,” and that, after suit brought, “the plaintiff may answer and avoid a demand for fees, or security for costs, by filing a like affidavit.” 27 Stat. 252 (2 Supp. Rev. St. p. 41). The plaintiffs are a widow and infant children, and have, since the order, filed the widow’s affidavit setting forth the circumstances, and that they are unable, by reason of their poverty, to give the cost bond requited by the order; and the defendant has filed proof tending to the contrary. The statute does not, however, provide that the affidavit shall not, if untrue, be an answer to a demand for security for costs in an action pending, but only that tiie court “may dismiss any such cause so brought under this act, if it be made to appear that the allegation of poverty is untrue,” and that willful false swearing in the affidavit shall be punishable as perjury. The filing of the affidavit, and not the truth of it, is wliat the statute makes an answer to the demand. And, if the affidavit might be avoided by being disproved, the defendant's evidence merely shows that she has a house and lot worth $1,800, subject to mortgages of $1,300, which, without proof of her other circumstances, might not be sufficient to overcome the affidavit. The statute seems to require the