
    FREDERICK V. BERGER v. E. FAXON BISHOP.
    Decided: June 22, 1903.
    1. The decision of the Board of Special Inquiry provided for by the Act of March 3, 1903, giving certain alien immigrants the right to land in the Territory of Hawaii, is not a bar to an action to recover the penalty for the unlawful bringing of said alien imnm grants into the country, under Sections 4 and 5 of the Act of March 3, 1903, regulating the immigration of aliens into the United States (Vol. 32, Part 1, U. S. Stats., 1213).
    2. Review of immigration laws of the United States supplementary to Sections 2158-2164, R. S. U. S.
    3. The provisions of Section 914, R. S. U. S., are not mandatory upon this court; on the contrary, a discretion is left in the court as to whether it will follow technically the forms,.pleadings' and modes of procedure of the courts of the territory.
    4. In an action at law based upon the provisions of Sections 4 and 5 of the Act of Congress of March 3, 1903, entitled “An Act to regulate the immigration of aliens into the United States” (Vol. 32, Part 1, ;p. 1213, U. S. Stats.), where defendant pleaded as a bar to the action the, decision of a board of special inquiry provided for by Section 25 of the Act, admitting the alien claimed to have been ■ brought into the country in violation of Sections 4 and 5 thereof, Held, that Congress provided a tribunal for the recovery of the penalty sued for in “the courts of the United States,” and further provided that “both the Circuit and District Courts should be invested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this Act” (Section 29). No restraint was placed upon the judgment of the courts by reason of the previous action of the administrative branch of the government. The question at issue between the alien and the government in that special inquiry was simply one of the alien’s right to land.
    5. A plea in .estoppel does no more than deny the plaintiff’s legal right to bring the action without denying or admitting the allegations of the complaint.
    6. The plea in bar, so-called, in this case held to be a plea in estoppel, which is overruled and defendant given 5 days in which to plead further.
    At Law.
    Action to recover penalty under Sections 4 and 5 of Act of March 3, 1903. (Val. 32, Part 1. P. 1213, U. S. Stats.)
    
      Thayer & Hememoay and John Albert Matthewman, for plaintiff.
    
      Smith & Leiois and Hartwell Bigelow', for defendant.
   Ester, J.

This is an- action at law brought by thei plaintiff under the1 provisions of Sections 4 and 5 of an Act of Congress, dated March 3, 1903, entitled “An Act to- regúlate the immigration, of aliens into tire United States.” (U. S. Statutes, 1902-3, page 1213).

The complaint alleges that—

“Continuously from November 1, 1902, or thereabouts, up to May 1, 1903, the defendant did knowingly encourage, and solicit the migration and importation into the; United States of America from a foreign country, to-wit: the empire of Korea, of one John Doe 1st, a foreigner and an alien, being a Korean' ..........to perform labor and service in the Territory of Elawaii; that in pursuance of and after such encouragement -and solicitation, the defendant continuously, between March 3, 1903 and May 1, 1903, did knowingly assist the immigration and importation- of said alien into- the said. United States of America from the Empire of Korea, -and on or about April 1, 1903, did knowingly prepay or cause to be prepaid, the transportation, of said alien between, the countries aforesaid, and that in pursuance of such' encouragement and solicitation, said alien did migrate, and on May 1, 1903, did enter Said Territory of Hawaii; that after entering said Territory of Hawaii as aforesaid, said alien did perform labor and services therein.”

The defendant interposed1 a plea in bar so-called' duly verified by the oath of defendant, which is in words and figures following :

“The defendant says that on the 5th day of May, A. D. 1903, at Honolulu, in the Territory of Hawaii, a duly appointed Board of Special Inquiry appointed in conformity with the provisions of an Act of Congress approved March 3, 1903, entitled ‘Am Act to regulate the immigration of aliens into the United States,’' was convened to- consider amongst other" cases; the case of the lawfulness of the immigration and importation to the United States of America, to- wit: to Honolulu, in the Territory of Hawaii, from a foreign country, to-wit, the Empire of Korea, of one e3 ohn Doe 1st’, a, foreigner and 'an alien, being a Korean,, and being the same pea-son mentioned as an alien in the plaintiff’s complaint.
“That said Board then and there had full authority to determine whether the said alien should be allowed to land or be deported, and also- whether said alien had been imported or brought or had come to the Territory of Hawaii in violation of law, and after taking testimony and examining the said case and considering the same, the said board decided on tliei sixth day of May, that the said alien should be allowed to land and should not be deported. And that said decision' is now in full force and effect and is final and conclusive' upon the question of the lawfulness of the alleged immigration and importation of the said alien to the Hnited States', and this the defendant is ready to verify. And the defendant says that hy force and effect of said decision and of the statute in such case made and pam vided, the plaintiff is precluded and barred from bringing this action, inasmuch as his right to' recover herein depends upon the 'unlawfulness of the immigration and importation as aforesaid of 'itiie said alien.”

Said plea, closing’' with, a prayer for judgment that the said complaint be dismissed with, costs.

To this, the plaintiff “waiving none of his objections to the legal insufficiency of the1 defendant’s plea”, replied as follows:

“Admits (a) that a board purporting to be a Board of Special Inquiry was convened on or about May 5th, 1903,.......... "to consider amongst other cases, the case of the importation and immigration of the John Doe 1st, referred to in both the complaint and plea in bar, and further (b) that said Board decided, •on or about May 6th, 1903, that said alien should be allowed to land.”

But denies every other allegation! in the plea contained, concluding with “and of this the plaintiff puts himself upon the ■country.”

Upon these pleadings, blue! case as to the plea in bar referred to, was heard upon consent without a jury. The. defendant introduced both written and oral evidence to sustain his plea; the plaintiff put in no evidence, and the case was therefore submitted upon the evidence offered by the defendant alone1 and tire questions of law raised thereon.

Congress has provided by a series of laws supplementary to .'Sections 2158-2164 inclusive of the Nevised Statutes of the United States, a system, the intent of which is to keep' from •our shores an undesirable alien population. It was early found that some prohibitory measures were necessary to be adopted in this behalf, to prevent the country becoming flooded with alien immigrants suffering from mental, physical and moral ailments. In the earlier Acts of Congress, the proscribed classes wore somewhat limited. The Act of March 3, 1875, (Vol. .13, Part •3, l’. S. Statutes at Large P. 477) provided only for the exclusion of “persons who are undergoing a sentence for conviction in their own country of felonious crimes other lhan political or growing out of or the result of such political offenses, or whose sentence has been remitted on condition of their immigration, and women 'imported for tbe purposes of prostitution.’ ” •

Tlie Act of August 3 1882, (Yol. 22 IJ. S. Statutes at large, p. 214), went a little further and refused admission to “any lunatic, idiot or person unable to take care of himself o-r herself Avithout becoming a public charged’

The Act of February 26, 1885 (Yol. 23, H. S. Statutes at large, p. 332), aauis the original “Contract labor” Act, prohibiting the importation and immigration of aliens under contract or agreement to perform labor in the United States, and providing a penalty for any person found guilty of violating any of the provisions of that Act by “knowingly assisting, encouraging or solicita,ting the migration, or importation of any alien or aliens into the United States..........to perform labor or service of any kind under contract, or agreement, express or implied, parole or special Avith such alien or aliens. .........previous to becoming residents or citizens of the United States.”

This laAv was amended by Act of Congress of February 23rd, 1887 (Yol. 24, U. S. Statutes at large, p. 414), by adding thereto certain other provisions Avher'eby the1 Secretary of the Treasury was given power to make rules and regulations for1 carrying out the provisions of the Act, and containing certain other provisions mot necessary to be gone into'.

The Act of October 19, 1S88, (Yol. 25, U. S. Statutes at large, p. 565), also in amendment of the Act of February 23, 1887, authorized the Secretary of the Treasury in case he shall be satisfied that an immigrant has been allowed to land contrary to the, prohibition -of tliei laA\r, to cause such immigrant Avithin the period of one year after landing or entry, to be taken into ■custody and returned to the country from Avhence he came.

The Act. of March 3, 1891, (Yol. 26, U. S. Statutes at large, p. 1084), adds to the list of prohibited classes “Paupers.-..... persons suffering from a loathsome or a dangerous contagious ■disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude (other than, political offenses) polygamists and also any pereom whose ticket or passage is paid for with the money of another or who. is assisted by others to coon©, unless it is affirmatively and satisfactorily shown on special inquiry that such person does not belong to one of the foregoing excluded classes, or to -the class of contract laborers excluded by the Act of February 26, 1885.”

It was in this Act of 1891 that the first reference to' a “special inquiry” was made. It should be here noted as indicative of the strong and consistent feeling of Congress upon the question of contract labor so called, and the determined effort made to1 meet every phase of these immigration violations, that Section 3 of the Act of 1891, above referred to', provided that “it shall be deemed a violation thereof,” toi “'assist or encourage the importation or immigration of any alien by promise of employment through advertisements printed and published in any foreign country; and any alien coming to this country in consequence of such advertisement shall be1 treated as coming under a contract as contemplated by such Act........” The same provisions are re-enacted in the Act of March 3, 1903, the penalty being the same imposed by Section 5 of the Act.

The next step taken by Congress in relation to' immigration' was tba Act of March 3, 1893, (Vol. 27, U. S'. Statutes at Large, p: 569), which amended the Act of 1891 in some details not relevant to the question under discussion in the case a.t bar, but which did not add to the proscribed aliens, but provided certain machinery to carry out the previsions of the: Act in the nature of a Board of Special Inquiry (Section 5) in conformity to Section 1 of the Act of 1891, which Board was to be. conducted by not less “than four officials acting as inspectors, to be designated in' writing by the Secretary of the Treasury or tire Superintendent of Immigration, for conducting special inquiries. "This section provided that no immigrant should be admitted unless upon a favorable decision made “by at least three” of tire said inspectors; any decision to admit, however, being1 subject toi appeal by any dissenting inspector toi tbe. Superintendent of Immigration whose action was subject to' review by the Secretary of the Treasury.

The Act of August 18, 1894, (Yol. 2, IJ. S. Supp. R. S. IJ. S'., pr. 253), provided in relation to the decision of the appropriate immigration oi* customs officers that such decision, “if adverse to the admission of the alien” should be final unless reversed on appeal to' the Secretary of the Treasury.

The Acts of March 2, 1895, (Yol. 2, H. S. Supp. R. S'. U. S., p. 415) and June 6, 1900, (Yol. 31, U. S. Statutes at Large, p. 611), respectively provided that the Superintendent of Immigration shall be designated Commissioner* General of Immigration and shall be in charge of the Chinese Exclusion Laws and of the various Acts regulating iromigration into- the1 United States, its territories and the district of Columbia under the supervision and direction of tire Secretary of thei Treasury.

The Act of March 3, 1903, (Statutes' of 1902-3, p. 1213-1222) upon which this action is based, not alone excludes by its prO'visions tire classes mentioned ini the preceding enumerated Acts of Congress, but g'oes- even further in its effort to raise the standard of foreign immigration and to make stronger if possible, the restrictions imposed upon the admission of those undesirable alien immigrants who seek an- entrance into thei country. It provides by Section 1 thereof for the exclusion of “all idiots, insane persons, epileptics, and persons who have been insane within five years previous; persons who have had two- or* more attacks of insanity at any time previously; paupers, persons likely to become a pub-lici charge; professional beggars, persons afflicted with a loathsome or with a dangerous contagious disease, persons who have been convicted of a. felony or other crime or misdemeanor involving moral turpitude; polygamists, anarchists, or persons who believe in or advocate the overthrow by force or violence of the government of the United States or of all government or of all fonnsi of law, or the assassination of public officials; prostitutes, and persons who procure or atemp-t. to bring in prostitutes or women for the purpose of prostitution; those who have been, within one year, from the date of the application for admission to the United States, deported as being under offers, solicitations, promises or agreements to perform. labor or service of some kind therein; and also any person whose ticket or passage is paid for with, the money of another, or who is assisted by others to come, unless it is affirmatively and satisfactorily shown that such person do® not belong- to one of the foregoing- excluded classes..........”

Sections 4 and 5 of this Act contain provisions similar to- the provisions of Sections 1 and 3 of the Act of February 26, 1885, (23 Stats. P. 332), sometimes called the. “assisted immigration act”, but a careful reading of theeei provisions will show a much more comprehensive treatment of the. subject of assisted immigrants in the Act of March 3, 1903.

Section 4 provides: “It shall be' unlawful for any person, company, partnership.or corporation, in any manner whatsoever to prepay the transportation or in any way to. assist or encourage the importation or immigration of any alien into the United States in pursuance of any offer, solicitation, promise or agreement, parole or special, express or implied, made previous to the importation of such alien to perform labor or service of any kind, skilled or unskilled in the United States.”

And it is provided by Section 5 that any person, company, paitaership or corporation violating the same “by knowingly assisting, encouraging or soliciting the migration or importation of any alien to the United States to perform labor or service of any kind by reason of any offer, solicitation, promise or agree; ment, express or implied, parole or special, to> or with such alien, shall forfeit and pay for every such offense the sum of on© thousand dollars., which may be sued for and recovered by the United States or by any person who shall first bring; bis action therefor in his own name and for Ms own benefit, including any alien thus promised labor or service of any kind as aforesaid ..........”

I do not deem it necessary at this stage of the case, however, to enter into a construction of Sections 4 and 5 of this Act, save possibly as to the right of the plaintiff to institute this action, which I will recur to later.

Under the Act of March 3, 1893, Section 5 thereof, special inquiries are to be held relative to the case of any alien detained by an immigration inspector, who is not satisfied “clearly and beyond a doubt” that the alien is entitled to- admission; an appeal being allowed to the Superintendent of Immigration by any dissenting’ inspector from, the Board’s decision to, admit, with a final review by the Secretary of the Treasury.

The Act of March 3, 1903, Section 25, also provides for the appointment of Special Boards of Inquiry; such appointments to be made by “the Commissioner of Immigration at the various ports of arrival as may be necessary for the prompt determination of all cases of aliens detained at such ports under the provisions of law.”

The “detention” referred to is a detention doubtless arising under the provisions of Section, 24 of said Act, which provides that “every alien who may not appear to the immigrant inspector at -the port of arrival to bei clearly and beyond a doubt entitled to land, shall be detained for examination in relation thereto by a Board of Special Inquiry”; which is practically the same provision as in the Act of March 3, 1893; but Section 25 of this last Act goes further and is m-ore stringent than is the an'alagons provision of the Act of 1893, for it provides that although an alien may be permitted to land upon examination and favorable decision by an immigrant inspector, yet that such decision shall be- “subject to, challenge by any other immigration officer, and such challenge shall operate- to take the alien whose right to, land is so challenged, before a board of special inquiry for its investigation.”

This Board of Special Inquiry shall “consist of three members” (Section 25) selected from such of the- immigration officials in the, service, as the Commissioner General of Immigration with the approval of the Secretary of the Treasury, shall from time- to, time designate as qualified to serve, on such boards,. Under this Section, such Boards are given “authority to determine whether an alien shall be allowed to land oa:1 be deported.”

The decision of this Board is declared by Section 10 of the Act to, be “final as to the rejection of aliens afflicted with a loathsome or with a dangerous contagious disease, or with any mental or physical disability which would bring such alien within any of the excluded classes”, but which decision must “be based upon the certificate of the examining medical officers.”

With the exception of these classes referred to, all other aliens' whose right to land is denied by the Board of Special Inquiry, the decision of twoi members of which shall in the language of the Act “prevail and be final”, have a right of appeal through the Commissioner of Immigration at the port of arrival and the Commissioner General of Immigration! to the Secretary of the Treasury, whose decision shall then be final. (Section 25.)

The right of appeal is also given to any dissenting-! member of the Board in the same manner, a right also secured under the ■Act of 1893.

I have gone very fully into a consideration of the provisions ■of the Acts of Congress in, order toi ascertain the intent of Congress- generally in restraining certain classes of alien immigrants from coming into the United States, and especially that class of immigrants induced to come herei under contract or promise of labor. I cannot express more clearly the motive for the original Act of February 26th, 1885, than was stated by Mr. Justice Brown, when, sitting as a District Judge, he decided the case of United States v. Craig, 28 Fed. P. 795, an action to recover a penalty under the provisions of that Act. lie said —

“The motives and history of the Act are matters of common knowledge. It had become the practice for large1 capitalists of this country to- contract with their agents abroad for the shipment of great numbers of an ignorant and servile class of foreign laborers under contracts by which the employer agreed, upon the one hand, to prepay their passage, while, upon the other, the laborers agreed to work after their arrival .for a, certain time at a, low rate of wages. The effect of this was to break down the labor market and to reduce other laborers engaged in like occupations to the level of assisted immigrants. The evil finally became so flagrant that am appeal was made to Congress for the passage of the Act in question, the design of which was to discountenance the migration of those who had not sufficient means in- their own hands or those of their friends, to- pay their passage.”

Church of the Holy Trinity v. U. S., 143 U. S., P. 457; U. S. v. Gay, 95 Fed. 226.

It seems to be clear, not alone that the intent of Congress was to exclude this as well as other classes o-f undesirable “alien immigrants”, but that it designed to leave the final decision as. to their “right to land” in the United States, to the discretion of the immigration officials, with a right of final appeal -to tire Secretary of the Treasury. Congress had plenary power to do this. Nishimura Ekiu v. U. S., 142 U. S., 651, 660; Hilton v. Merritt, 110 U. S. 97; Benson v. McMahan, 127 U. S. 457 ; In re Oteiaza, 136 U. S. 330; Lee Moon Sing v. U. S., 158 U. S. 538, 547; Yamataya v. Fisher, Yol. 23, Ad. Sheets, Am. L. R. No. 12, May 15, 1903.

Counsel for plaintiff -contends that defendant failed to prove that the Board of Special Inquiry which considered the eases of the Koreans was a legal board, -or constituted under conformity to the provisions of Section 25 of the Act of March 3, 1903. The legality of the organization -of that Board is not a. matter necessary to be passed upon by this: Court in rendering a de>cision in a. proceeding of this character.

It 'Seems to be settled law that thei power to- admit or. reject aliens claiming the right to land in United States territory lies in -the administrative officers acting under the political powers of the Government, “except so far as the judicial department is authorized by treaty or by statute, or is required by the Constitution to intervene.” Fok Yung Wo v. U. S., 185 U. S. 296. Under the Act of March 3, 1903, this power has been granted by Congress to a, special board of inquiry.

But while Congress has seen fit to give full powers to axeicutive officers upon this question, not alone of admitting but of expelling aliens (Sections 21 and 35 Act of March 3, 1903), yet in the. exercise of its powers “it may call in the- aid of the judiciary to ascertain- any contested facts on which an alien’s right to be in the country may depend.” Lem Moon Sing v. United States, 158 U. S. 538, 545.

Congress knowing" of tire strong efforts made to bring into tbe country this low grade immigration labor, and feeling1 that there bad been and might be in thei future many successful evasions of the vigilance of the immigration officers (In re Lifieri, 52 Fed. 293) substantially provided by Section 5 of the Act of March 3, 1903, that every person in the United States should be constituted a committee of on© toi ascertain if the immigration laws had been violated in this respect, and as an inducement to due: vigilance thereunder, provided that such person could bring an action in his own name “and for his own benefit” to recover from the person accused of violating tire law the sum of one thousand dollar’s as a penalty for each and every such offense. Congress provided a tribunal for the recovery of such penalty “in the Courts of tire United States” (Section 5 of the Act) and further prescribed that “both the Circuit and District Courts should be invested with full and concurrent jurisdiction of all causes civil and criminal arising under any of the provisions of this Act” (Section 29). No restraint is placed upon the judgment of 'the courts by reason of the previous action of the administrative branch of tbe government. The question at issue between thei alien and the government in that special inquiry was simply one of the alien’s right to’ land.

Under the analagous provisions of the Act of February 26th, 1885, as amended by the Act of March 3, 1891, (Section 13) both tire Circuit and District Courts of the United States are given jurisdiction of “all causes civil and criminal arising under the provisions of this Act.” Under those provisions the Circuit and District Courts of the various Districts of the United .States have assumed jurisdiction in suits to recover these penalties for alleged violations of the law. See U. S. v. Craig, 28 Fed. Rep. 795; U. S. v. Bornemann, 41 Fed. Rep. 751; U. S. v. Edgar, 45 Fed. Rep. 44; U. S. v. Gay, 80 Fed. Rep. 254; Id. 95 Fed. Rep. 221; Rosenberg v. Union Iron Works, 109 Fed. Rep. 844; U. S. v. McElroy, 115 Fed. Rep. 252.

Under the Act of March 3, 1903, as under the former Act of February 26, 1885, the United States as well as any private individual may bc¡ a party in suits 1» recover this penalty; the late law differing in this, that the private individua] bringing the action may do so in his own name “and for his own benefit” thereby making' a somewhat radical change from the Act of 1885.

So too', the Supreme Court of the United States in construing Section 13 of the Act of March 3, 1891, amendatory of the Act of February 26th, 1885, and identical with Section 29 of the present Act, says:

“Section 13, by which the Circuit and District Courts of the United States are ‘invested with full and concurrent jurisdiction of all causes civil and criminal arising under any of the provisions of this Act’, evidently refers to causes of judicial cognizance:, already provided for, whether civil actions in the nature of debt for penalties under Sections. 3 and 4 (of the Act of 1885) or indictments for misdemeanors under Sections 6, 8 and 10. Its intention was to invest concurrent jurisdiction of such causes in the Circuit and District Courts; and it is impossible to construe it as giving to the courts jurisdiction to. determine matters which the Act has expressly committed to the final determination of executive officers.” Nishimura Ekiu v. U. S. 142 U. S, 651, 664.

I am. of opinion that this Court has jurisdiction to hear actions arising under Sections 4 and 5 of tire Act of March 3, 1903; and the decision of the Board of Special Inquiry giving to these Koreans the right to land, is not a bar to an action for a penalty for bringing them unlawfully into the: United States brought under the said provisions of that Act. U. S. ex rel Anderson v. Burke, 99 Fed. 895, 900.

Counsel for plaintiff made the point that if this court should overrule the plea in bar of defendant, judgment should be at once entered against thei defendant for the amount of the penalty sued for upon the ground that the plea in bar is a, confession and avoidance under the rules of common law pleading; and that having had a full trial upon the facts presented by Mm under said plea, defendant cannot under the. provisions of Section 1223 of the. Civil Code of Hawaii, (Civil Laws of Hawaiian Islands,' 1897) continued in force by the provisions of an Act of- Oongress for the government of the Territory of Hawaii (U. S. State. Yol 31, p. 141) plead any further. Counsel contended further that this court is bound under the provisions of Section 914 of the Revised Statutes of the United States to conform to the practise, pleadings and forms and modes of proceedings of the courts of the Territory of Hawaii. Under the local practise, two foams of answer are provided by Section 1223 of the Civil Oode of Hawaii: 1. “Admitting all the facts .stated in file petition to be true and denying that they are sufficient in law to support the plaintiff’s demand, which shall form an' issue of law 'to be determined by the court; or, 2, Denying the truth of the facts stated in the petition, which shall form an issue of fact to be determined by the juay.” And concluding “that after either of these answers there shall be no further pleading.”

The first form of answer called for under1 this Section is practically a deniuiTor, and in fact Section 1229 of the Civil Laws of 1891 of Hawaii, provides: that it shall be called a demurrer. It is admitted that no demurrer was filed in this case. The other answer called for “must deny the truth of the facts stated in the petition, which shall form am issue of fact to be determined by the jury.” No such denial was interposed in this case by the so-called plea iar bar.

The provisions of Section 914 of the Revised Statutes of the United States are not mandatory upon this Court;-on the contrary, a discretion is left in the Court as to whether it will follow technically the forme:, pleading and inodes of procedure of the: courts of the territory. Says the Supreme Court in the case of Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291, 300, 301.

“The conformity is required to be ‘as near* as may be’ — not as near as may be possible, or as near as may be practicable. This indefinitenoss may have- been suggested by a purpose; it devolved upon the judges: to be affected the: duty of construing and deciding, and gave- them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such statutes which, in their judgtmeaat would unwisely encumbea* the administration of the law, or tend to defeat the ends of justice in their tribunals.”

And again, in the case of Mexican Central Railway v. Pinckney, 149 U. S. 194, 207, the Supreme Court further says:

“The words of this Section 'as near as may be’ 'were intended to qualify what would otherwise ha.ve been a mandatory provision, and have the effect to leave the Federal courts some deigree of discretion in conforming entirely to thei state procedure. These words imply that in certain cases it would not be practicable, without inj ustice or inconvenience to> conform literally to the entire practise prescribed for its own courts by a state in which Federal courts might be sitting.”

Association v. Barry, 131 U. S. 100; Nudd v. Burrows, 91 U. S. 426; Erstein v. Rothchild, 22 Fed. 61, 64; O’Connell v. Reed et al., 56 Fed. 531.

In any event, it may be doubted whether the plea interposed in this case was in conformity with the provisions of Section 1223 of tire Civil Laws of Hawaii. I am not inclined, however, to hold with plaintiff that this is such a plea, in bar as is considered at common law a confession and avoidance; but it is rather in the nature of a plea in estoppel which neither admits nor denies, but simply relies upon some matter which estops the plaintiff from pursuing his action.

“A special plea in bar alleging matter of estoppel neither confesses nor denies the truth of the declaration, though like other pleas in bar, it virtually denies tire right of action by denying tire plaintiff’s right to allege the facts stated in the declaration.” Section 70, Gould on Pleading", 4th Ed. Oh. Yl Part 2, p. 317.

Says the same author, on Page 33 of the same work, Chapter 2, Section 39,—

“A plea to the action being an answer to* the merits of the complaint, always goes in denial of the alleged right of action. And this the defendant may deny, 1, by denying in whole or in part, the allegations in the declaration; or 2, by alleging new matter which admits the truth of the plaintiff’s allegations, but goes in avoidance of them; or 3, by pleading matter which neither admitting nor denying aaxy -of the facte alleged by the plaintiff, denies his legal right to allege them.”

It seems to' the court that this plea in bar is a plea in. estoppel which does no more than- deny the plaintiff’s “legal right” to bring this action by setting up as a bar thereto', the decision of the Special Board of Inquiry. No judgment will be entered in -this case until all the facts are heard by the court on the merits. The plea in bar is therefore overruled with costs taxed against defendant; the defendant being further given five days’ time in which to plead.  