Syllabus.

ing the accident, there being no want of care, skill, or attention on the part of those in charge of the tow-boat, either before or after the occurrence, in regard to the navigation or the saving of the cargo of the Colossal.

The appellees have contended in this court that the rulings of the Circuit Court as to the demurrer and the plea were erroneous, but, without passing on those questions, we affirm the decree, for the reason stated.

Affirmed.

UNITED STATES v. HILL.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

Argued December 20, 1886. - Decided January 31, 1887.

It was the custom in the United States courts in Massachusetts, from 1839 to December, 1884, known and approved by the judges, for the clerk to charge $3 as fees in naturalization proceedings. The clerk of the District Court never included those fees in his returns. That fact was known to the judges to whom his accounts were semi-annually exhibited, and by whom they were passed without objection in that particular. Relying on that custom, and believing that those fees formed no part of the emoluments to be returned, the clerk of the District Court appointed in 1879 did not include those fees in his accounts. This was known to the district judge when he examined and certified the accounts, and his accounts so made out, to July, 1884, were examined and adjusted by the accounting officers of the Treasury. Under a rule made by the District Court in 1855, the clerk had charged and received the $3 as a gross sum, for examining, in advance of their presentation to the court, the application papers, and reporting to the court whether they were in conformity with law; and had made no division for specific services, according to any items of the fee bill in §§ 823 et seq. of the Revised Statutes. In a suit brought in December, 1884, on the official bond of the clerk, against him and his surety, to recover the amount of the naturalization fees; Held:

(1) The provision in § 823, taken from § 1 of the act of February 26, 1853, c. 80, 10 Stat. 161, that the fees to clerks shall be "taxed and allowed,” applies, prima facie, to taxable fees and costs in ordinary suits between party and party, prosecuted in a court; and there is no specification of naturalization matters in the fees of clerks.

Opinion of the Court.

(2) The statute being of doubtful construction as to what fees were to be returned, the interpretation of it by judges, heads of departments, and accounting officers, contemporaneous and continuous, was one on which the obligors in the bond had a right to rely, and, it not being clearly erroneous, it will not now be overturned.

THIS was an action at law to recover from the defendants in error, fees which it was claimed the clerk of the District Court of the United States for the District of Massachusetts should have accounted for, the defendants being the clerk and his bondsman. Judgment for defendants to review which this writ of error was sued out. The case is stated in the opinion of

the court.

Mr. Assistant Attorney General Maury for plaintiff in error. Mr. John Lowell for defendant in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

On the 5th of February, 1879, Clement Hugh Hill was duly appointed clerk of the District Court of the United States for the District of Massachusetts, by the judge of that court. On the same day he and William Goodwin Russell and another person executed a joint and several bond to the United States in the penal sum of $20,000, conditioned that Hill, "by himself and by his deputies," should "faithfully discharge the duties of his office, and seasonably record the decrees, judg ments, and determinations of the said court, and properly account for all moneys coming into his hands, as required by law." The statute requiring a bond, in force at the time, was $3 of the act of February 22, 1875, c. 95, 18 Stat. 333, which required the clerk to give a bond, with sureties, "faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments, and determinations of the court of which he is clerk."

This suit was brought by the United States against Hill and Russell on said bond by a writ dated December 4, 1884, claiming $22,000 damages. The declaration alleges, as a breach of the bond, that Hill "has not properly accounted for

Opinion of the Court.

all moneys coming into his hands, as required by law, according to the condition of said bond." The answer of the defendants denies that allegation, and avers that Hill "has made full and sufficient returns of all moneys received by him, as required by law, and that he owes no sum of money to the said United States."

The following agreed statement of facts was filed July 1, 1885, signed by the attorneys for the respective parties, and upon it the case was, by written agreement, submitted to the decision of the court:

"The defendant Hill was appointed clerk of said court on the fifth day of February, 1879, and duly qualified as clerk, and the defendants gave the bond, a copy of which is annexed to the declaration. As clerk, he has made half-yearly returns of fees and emoluments received by him, but he has not included in the same the amounts received by him for the naturalization of aliens in the District Court.

"It has been the custom in the United States Courts in the District of Massachusetts, for a long time, not less than fortyfive years before the date of the writ in the present action, and known and approved by the judges, for the clerk to charge one dollar as a fee for a declaration of intention to become a citizen, and two dollars as a fee for a final naturalization and certificate thereof; and the clerk of the District Court has never included these in the fees and emoluments returned by him, and this has been known to the judges to whom the accounts have been semi-annually exhibited, and by whom they were passed without objection in this particular. Following this custom, and believing and being informed, that these fees formed no part of the emoluments to be returned to the government, the defendant Hill has not included these amounts in his accounts, and this was known to the judge when his accounts were examined, and he made on each a certificate in the form hereto annexed; and his accounts, so made out, up to July 1, 1884, have been examined and adjusted by the accounting officers of the Treasury Department.

"The clerks of the several courts of the state of Massachusetts made similar charges for like services, and made no

Opinion of the Court.

returns to the treasurers of the counties of the fees so received until the passage of the statute of the State of 1879, c. 300.

"If, upon the facts before stated and agreed, the court shall be of opinion that the said fees, charged by the defendant Hill, in respect to naturalizations, or any part thereof, should have been returned in his accounts to the United States as part of the emoluments of the clerk, from which his compensation is to be taken, in accordance with 833 of the Revised Statutes, and that the settlements and adjustments of his several accounts, as above mentioned, constitute no defence to this action, the case shall be sent to an assessor to ascertain the amount due the United States, in accordance with the law as laid down by the court, unless the parties shall, within fifteen days after the announcement of the opinion of the court, agree upon the amount.

"The blanks used for the report of clerks' fees and emoluments, and the blanks used in naturalization of aliens, may be considered as part of the record of the case.

"The instructions of the Department of Justice to the several clerks, dated January, 1879, may be read for any purpose for which they are properly applicable; but neither the defendant Hill nor his deputy, Mr. Bassett, has any recollection of receiving or seeing such a circular before October, 1884.

"The court may draw such inferences from the above facts as a jury might."

Section 833 of the Revised Statutes provides that every clerk of a District Court shall, "on the first days of January and July, in each year, or within thirty days thereafter, make to the Attorney General, in such form as he may prescribe, a written return for the half year ending on said days, respectively, of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office, including necessary clerk hire, together with the vouchers for the payment of the same for such last half year. shall state separately in such return the fees and emoluments payable under the bankrupt act. .. Said returns shall be verified by the oath of the officer making them."

He

Section 839 of the Revised Statutes provides, that "no clerk

of a District Court

Opinion of the Court.

shall be allowed by the Attorney

General office, for his personal compensation, over and above his necessary office expenses, including necessary clerk hire, to be audited and allowed by the proper accounting officers of the Treasury, a sum exceeding three thousand five hundred dollars a year for any such district clerk,

to retain of the fees and emoluments of his

ing that rate for any time less than a year."

or exceed

Section 844 provides, that every clerk shall, "at the time of making his half-yearly return to the Attorney General, pay into the Treasury, or deposit to the credit of the Treasurer, as he may be directed by the Attorney General, any surplus of the fees and emoluments of his office, which said return shows to exist over and above the compensation and allowances authorized by law to be retained by him."

Section 845 provides, that in every case where the return of a clerk "shows that a surplus may exist, the Attorney General shall cause such returns to be carefully examined, and the accounts of disbursements to be regularly audited by the proper officer of his department, and an account to be opened with such officer in proper books to be provided for that purpose."

The foregoing provisions of §§ 833, 839, 844, and 845 were taken from § 3 of the act of February 26, 1853, c. 80, 10 Stat. 165, 166, the supervision being changed from the Secretary of the Interior to the Attorney General by § 15 of the act of June 22, 1870, c. 150, establishing the Department of Justice. 16 Stat. 164.

Section 846 provides, that the accounts of clerks "shall be examined and certified by the district judge of the district for which they are appointed, before they are presented to the accounting officers of the Treasury Department for settlement. They shall then be subject to revision upon their merits by said accounting officers, as in the case of other public accounts." This provision was taken from § 1 of the act of August 16, 1856, c. 124, 11 Stat. 49.

The blank used for the report of clerks' fees and emoluments, and the oath appended to the report and the certificate