tierces of Ponce molasses, which had come upon the schooner O. M. Marrett, in fulfillment of their contract of the 4th of February, 1885. The defendants refused the tender on the ground that the plaintiffs could not make a second tender after the first had been rejected.

The plaintiffs, claiming that their tender was a good one, insisted upon the same, and after the defendants had refused to accept such tender, sold the said merchandise on account of the defendants, realizing a certain sum not necessary to be stated in this statement of the case.

Afterward, on or about the 1st of April, 1885, the Ocean Home arrived, and the molasses upon the Ocean Home was sampled, and found not to comply with the contract of the 4th of February, 1885. The plaintiffs thereupon brought suit against the defendants upon the contract of the 4th of February, 1885, and asked judgment for the difference between the contract price of the molasses, and that which they realized from the sale thereof.

The defendants, in answer, set up the fact of the tender of the forty-nine puncheons, and its rejection, and alleged that after such rejection, and before the second tender of the plaintiffs, they had supplied their wants with other molasses, without any notice or intimation from the plaintiffs that they had or proposed to have other molasses to offer to the defendants.

They counterclaimed for insurance upon the molasses alleged to have been paid by them while the same was in transit.

Upon the trial of the case the learned justice directed a verdict in favor of the plaintiffs, and ordered the exceptions in the first instance to be heard at the General Term.

George W. Ellis, for defendants.
Joseph A. Shoudy, for plaintiffs.

VAN BRUNT, P. J. The only question which seems to be involved in this case, is whether the plaintiffs had a right to make the second tender to the defendants after the rejection of the forty-nine hogsheads of molasses as not complying with the terms of the contract. In the disposition of this question it is not necessary to determine whether in any case such a second tender might be permitted because the facts in the case at bar are peculiar.

It appears from the correspondence which was exchanged between the plaintiffs and defendants in reference to this molasses that at the time of its arrival the defendants were notified by the plaintiffs that only forty-nine puncheons and fourteen tierces of molasses suitable for their contract had arrived upon the O. M. Marrett, and that the balance would arrive by the Ocean Home, for which the plaintiffs already had a bill of lading.

made and refused upon the ground of the failure to comply with the contract in respect to quality, they had a right to assume that the plaintiffs in this action could not comply with the contract, and to go into the market and supply their wants, if they felt so disposed, and after they had done this, the plaintiffs certainly could not compel them to accept other molasses, even though it came by the first vessel which arrived after the making of the contract, because they had notified the defendants in this action that all the molasses which they could apply to the contract in question which had come by the O. M. Marrett was forty-nine puncheons and fourteen tierces; and in their subsequent action the defendants had the right to rely upon this representation. It was equivalent to a notice by the plaintiffs that they had no other molasses, except such as would arrive by the Ocean Home, and that that was of a quality similar to that which was tendered as coming from the O. M. Marrett.

These facts and circumstances clearly distinguish the case at bar from the case of Borrowman v. Free, L. R., 2 Q. B. Div. 500. In that case a tender was rejected from a certain ship, because the tender was not accompanied by the proper shipping documents. The tender was immediately renewed from another ship, accompanied by the proper shipping documents, and the court held that if the first tender was not good, the party making the tender had the right to withdraw it and to tender anew. There was no pretense in that case that there was any notification given to the defendant that this was all the merchandise which they had which would comply with the contract, and that thereupon the party to whom the tender was made went into the open market and supplied his wants, assuming, as he had a right to do, that no sufficient tender could be made under the contract. In the case at bar just such a notice was given, and the defendants had a right to assume from the notice which was given and the merchandise which was tendered, that the plaintiffs could not comply with their contract, they having been notified that the only molasses which could be applied to their contract, and which had come by the O. M. Marrett, was forty-nine puncheons, and that the balance was to arrive by the Ocean Home. The forty-nine puncheons tendered being of an inferior quality, they had a right to reject and to assume that the balance of the lot would be of the same quality, as the evidence seems to show it

was.

It does not seem that the plaintiffs in this case had the right to make tender after tender, and certainly if the position of the defendants was changed after the rejection of the first tender, the plaintiffs having given no intimation that they intended to renew the same, they could not be compelled to accept that which was

The claim of the defendants for insurance does not seem to have any foundation in fact. The delivery of the molasses was to be made in New York. The title to the molasses was in the plaintiffs until its arrival here; the defendants had no interest in it until it was tendered and accepted by them as complying with the contract, the title remaining in the plaintiffs. There was therefore no necessity for them to insure the molasses, having no title to it, and running no risk in its loss, their only insurable interest really being the profits which they might make upon the contract. They therefore were not called upon to insure, and if they did so, it was at their own peril, and for the loss arising therefrom a recovery cannot be had.

We however being of the opinion that under the circumstances of the case, if the jury found that the defendants had in good faith changed their position

after the rejection of the first tender, the defendants could not be called upon to accept the molasses subsequently tendered by the plaintiffs.

The exceptions must therefore be sustained, and a new trial ordered, with costs to abide the event. Lawrenee and Potter, JJ., concur.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL

AMOUNT IN CONTROVERSY-JURISDICTION. ---Where defendant appeals from an affirmance of a judgment for plaintiff, the amount of the judgment determines the question of jurisdiction of this court. Where plaintiff appeals in a like case, the sum for which the complaint demands judgment controls. The plaintiff sues for injuries to personal property caused by defendant's negligence, and after issue joined, was upon trial before a referee awarded $400, with $156 interest, making a total of $556, and for this sum judgment was ordered in his favor. The record shows that judgment was so entered. "Damages

$556, and $357.41 costs and disbursements." Upon appeal to the General Term it was affirmed, and from the judgment of affirmance the defendant appealed to this court.. The plaintiff moves to dismiss the appeal upon the ground, as stated in the notice of motion, "that the amount in controversy in this action is less than $500." This contention is put upon the complaint, which alleges damages only to the amount of $400, and demands judgment accordingly. But neither this limitation, nor the method by which the referee ascertained and then made up the aggregate of damages is material. The matter in controversy in this court upon the defendant's appeal is the amount of the judgment as rendered, and from which the appeal is taken. Brown v. Sigourney, 72 N. Y. 122. And if that, excluding costs, is not less than $500, we have jurisdiction to review it. A different rule restricts the plaintiff. Upon an appeal by him from a judgment in an action, the sum for which the complaint demands judgment becomes material. Code, § 191, subd. 3. But the provision of the Code which makes it so has no application here. Feb. 8, 1887. Graville v. New York Cent., etc., R. Co. Opinion by Danforth, J.

EVIDENCE-PRIVILEGED INFORMATION-PHYSICIAN AND PATIENT-CODE CIV. PROC., § 834.-In an action to recover damages for personal injuries, defendant called as a witness a physician who on a former trial had testified on plaintiff's behalf, and proposed to prove by him the injuries claimed to have been suffered by plaintiff, as learned by him upon a personal examination of plaintiff while attending her as a patient. On plaintiff's objection that the information was privileged the evidence was excluded. Held, that the evidence was competent, and its exclusion error. Such evidence is made incompetent at the option of the patient only, and in case she at any time elects to remove the seal from the lips of the witness the evidence may properly be received. The intent of the statute in making such information privileged is to inspire confidence between patient and physician, to enable the latter to prescribe for and advise the former most advantageously, and remove from the patent's mind any fear that she may be exposed to civil or criminal prosecution, or shame and disgrace, by reason of any disclosures thus made. Therefore the statute provides that the information acquired by a physician while attending a patient, in his professional capacity, shall not be disclosed unless the patient expressly waives its prohibition. §§ 834, 836, Code Civ. Proc. It is claimed by the appellant that the ban of secrecy having once been removed by the patient, and the information having lawfully been made public, the

right to object further thereto has not been conferred. There seems much reason in this claim. The patient cannot use this privilege both as a sword and a shield, to waive when it inures to her advantage and wield when it does not. After its publication no further injury can be inflicted upon the rights and interests which the statute was intended to protect, and there is no further reason for its enforcement. The nature of the information is of such a character that when it is once divulged in legal proceedings, it cannot be again hidden or concealed. It is then open to the consideration of the entire public, and the privilege of forbidding its repetition is not conferred by the statute. The consent having been once given and acted upon cannot be recalled, and the patient can never be restored to the condition which from motives of public policy requires the suppression of such information. The stringency with which the rule excluding privileged communications is applied by this court is illustrated in the recent case of Renihan v. Dennin, 103 N. Y. 573, but there is no principle or authority for holding, after a consent to publish such information has been properly given, and the evil, if any, consummated, that the privileged person can again raise the objection. The object of the statute having been voluntarily defeated by the party for whose benefit it was enacted, there can be no reason for its continued enforcement in such case. The maxim of "cessante ratione legis cessat ipsa lex" is of frequent application, and is a sound rule of interpretation. Whart. Max. 17, p. 49. It seems to us that this rule may properly be applied in determining the meaning of the word "waived as used in the statute, and as supporting the conclusion that when once waived and made effectual by publication, it is waived for all time. In Parks v. Johnson, 11 Wend. 442, the chancellor applied the maxim in the case of an adverse occupant of lands, and held that he did not come within the reasoning of the statute prohibiting the sale of lands held adversely, and was not therefore within its prohibition. In De Witt v. Barley, 9 N. Y. 371, the principle embodied in the maxim was applied to modify the rule excluding the opinion of witnesses as evidence, and it may be said that it is applicable to every case where the sole reason for a rule has entirely ceased to exist. Feb. 8, 1887. McKinney v. Grand St. R. Co. Opinion by Ruger, C. J.

LEASE OF TOWN LANDS-RENEWAL.-By resolution of the electors of the town of Gravesend, passed at a town meeting in 1871, it was provided that the common lands of the town should be thereafter let only at public auction, on notice, and that no lot should be let at a time more than one year prior to the expiration of and existing lease thereon, and no lot let for a longer period than ten years. By a resolution passed in 1878 the resolution of 1871 was amended by adding thereto the following: "The commissioners of common lands are also authorized to renew any existing lease * * * upon terms as they may deem most advantagous for said town." Plaintiffs held a lease which expired in 1882. The commissioners renewed said lease March 1, 1880. Held, that the renewal was invalid. Feb. 8, 1887. Tilyou v. Town of Gravesend. Opinion by Andrews, J.

marine corps is a military body, designed to perform military services; and while they were not necessarily performed on board ships, their active service in time of war is chiefly in the navy, and accompanying or aiding naval expeditions. In time of peace they are located in navy-yards mainly, although occasionally they may be used in forts and arsenals belonging more immediately to the army. The statutes of the United States, in prescribing the duties which they may be required to perform, have not been very clear in any expression which goes to show how far these services are to be rendered under the control of the officers of the navy or of the army. It is clear that they may be ordered to service in either branch; but we are of opinion that taking all these statutes and the practice of the government together, they are a military body, primarily belonging to the navy, and under the control of the head of the naval department, with liability to be ordered to service in connection with the army, and in that case under the command of army officers. Section 1599 of the Revised Statutes of the United States enacts that no person under twenty or over twenty-five years of age shall be appointed from civil life as a commissioned officer of the marine corps until his qualifications for such service have been examined and approved under the directions of the secretary of the navy; and section 1600, immediately following, provides that all marine officers shall be credited with the length of time that they have been employed as officers or enlisted men in the volunteer service of the United States. Sections 1613-1616 very clearly place the non-commissioned officers, musicians, or privates of the marine corps under the orders of the secretary of the navy, with reference to their performance in the capitol ground, or the president's grounds, and with reference to their rate of pay and their rations, Section 1621 declares that the marine corps shall at all times be subject to the laws and regulations established for the government of the navy, except when detached for service with the army by order of the president, and when so detached, shall be subject to the rules and articles of war prescribed for the government of the army. Section 1623, which relates to the retirement of officers with rank and pay, enacts that in the case of an officer of the marine corps, the retiring board shall be selected by the secretary of the navy, under the direction of the president. Twofifths of the board shall be selected from the medical corps of the navy, and the remainder from the officers of the marine corps. It seems to us that the provisions of the Revised Statutes, bringing together the enactment of Congress on the subject of the marine corps, show that the primary position of that body in the military service is that of a part of the navy, and its chief control is placed under the secretary of the navy, there being no exceptions, when it may, by order of the president, or some one having proper authority, be placed more immediately, for temporary duty, with the army, and under the command of the superior army officers. Wilkes v. Dinsman, 7 How. 89. Feb. 7, 1887. United States v. Dunn. Opinion by Miller, J.

CONTRACT

CORPORATIONS MADE BY SUPERINTENDENT AND PRESIDENT RELEASE DISAFFIRMANCE BY DIRECTORS ACQUIESCENCE.- (1) Where a contract, not under seal, was made by the superintendent of a corporation, who was authorized under its by-laws, with the approval of the president, to buy and sell material, and to make all contracts for the same," without any express resolution or ratification of the board of directors, the by-laws providing "that the superintendent and all other persons shall in all cases be subject to the control of the board of directors in everything where the board shall elect to

exercise such control," held, that the superintendent had the power to release the contract. The direction given by Mr. Joues to the treasurer, Mr. Thomas, both of whom were also directors in the corporation, was within the line of his authority. He had under this same authority, without any express resolution or ratification of the board of directors, made the contract on which this suit is brought; and it would seem that not being under seal, a simple contract concerning the ordinary business of the company, the same power which enabled him to make it was sufficient to enable him to release it, unless the power had been withdrawn. (2) Another principle leads to the same result. These by-laws show that the board of directors retained the power in their hands to control the president and superintendent in any transaction, whenever it was thought proper to do so. This matter was reported to the directors. They had a meeting upon the subject some six weeks after the whole thing had been consummated, and after they had received the benefit of the release by the payment of their drafts. The rule of law upon the subject of the disaffirmance or ratification of the acts of an agent required, that if they had the right to disaffirm it, they should do it promptly, and if after a reasonable time they did not so affirm it, a ratification would be presumed. In regard to this it appears that the board, when notified of what had been done by their agents, did not disaffirm their action at that time, but that the act or resolution of disaffirmance was passed about two years after notice of the transaction, and that if the suit brought in this case can be considered as an act of disaffirmance, it came too late, as it was commenced some six mouths after they had knowledge of the release. As was stated in the somewhat analogous case of Twin Luck Oil Co. v. Marbury, 91 U. S. 592, “the authorities to the point of the necessity of the exercise of the right of rescinding or avoiding a contract or transaction as soon as it may be reasonably done, after the party with whom that right is optional is aware of the facts which gave him that option, are numerous. * ** The more important are as follows: Badger v. Badger, 2 Wall. 87; Harwood v. Railroad Co., 17 id. 77; Marsh v. Whitmore, 21 id. 178; Vigers v. Pike, 8 Clark & F. 650; Wentworth v. Lloyd, 32 Beav. 467: Follausbe v. Kilbreth, 17 Ill. 522. See also Gold-mining Co. v. National Bank, 96 U. S. 640; Law v. Cross, 1 Black, 533. Jan. 31, 1887. Indianapolis Rolling-Mill Co. v. St. Louis, Ft. S. & W. R. Co. Opinion by Miller, J.

***

INJUNCTION-BOND-DAMAGES.- Where an injunction was issued by the United States District Court, the court ordering that a bond be given by plaintiffs "to save the parties harmless from the effects of the injunction issued in this case," and a bond was accordingly given, conditioned to pay "to the said defendant in said injunction all such damages as he may recover against us, in case it should be decided that the said writ of injunction was wrongfully issued," held, that the bond given was valid, the condition of the bond being that the obligors would pay all such damages as the obligee should recover against them by a suit on the bond itself. Bein v. Keath, 12 How. 168, distinguished. Jan. 31, 1887. Meyers v. Block. Opinion Bradley, J.

INSURANCE -APPLICATION - SEVERAL QUESTIONSONE ANSWER-CONCEALMENT-WAIVER-ACCEPTANCE OF PREMIUM. An application for life insurance contained the following questions: (28) Has any application been made to this or any other company for assurance on the life of the party? If so, with what result? What amounts are now assured on the life of the party, and in what companies? If already insured in this company, state the number of policy." The auswer was: "$10,000, Equitable Life Assurance

Society." Held, that the answer only purported to be an answer to the third of the four questions, and that as that was answered truly and the company chose to issue a policy without requiring the others to be answered, it was no defense, in an action on the policy, that the insured had made other applications for insurance, which had been refused, even though the omission to state this was intentional. (1) Answers to questions propounded by the insurers in an application for insurance, unless they are clearly shown by the form of the contract to have been intended by both parties to be warranties, to be strictly and literally complied with, are to be construed as representations, as to which substantial truth in everything material to the risk is all that is required of the applicant. Moulor v. American Ins. Co., 111 U. S. 335; Campbell V. New England Ins. Co., 98 Mass. 381; Thomson v. Weems, 9 App. Cas. 671. The misrepresentation or concealment by the assured of any material fact entitles the insurers to avoid the policy. But the parties may by their contract make material a fact that would otherwise be immaterial, or make immaterial a fact that would otherwise be material. Whether there is other insurance on the same subject, and whether such insurance has been applied for and refused, are material facts, at least when statements regarding them are required by the insurers as part of the basis of the contract. Carpenter v. Providence Washingtou Ins. Co., 16 Pet. 495; Jeffries v. Life Ins. Co., 22 Wall. 47; Anderson v. Fitzgerald, 4 H. L. Cas. 484; Macdonald v. Law Union Ins. Co., L. R., 9 Q. B. 328; Edington v. Etna Life Ins. Co., 77 N. Y. 564; S. C., 100 id. 536. Where an answer of the applicant to a direct question of the insurers purports to be a complete answer to the question, any substantial mistatement or omission in the answer avoids a policy issued on the faith of the application. Cazenove v. British Equitable Assurance Co., 29 Law J. C. P. (N. S.) 160, affirming S. C., 6 C. B. (N. S.) 437. But where upon the face of the application, a question appears to be not answered at all, or to be imperfectly answered, and the insurers issue a policy without further inquiry, they waive the want or imperfection in the answer, and render the omission to answer more fully immaterial. Connecticut Ins. Co. v. Luchs, 180 U. S. 498; Hall v. People's Ins. Co., 6 Gray, 185; Lorillard Ins. Co. v. McCulloch, 21 Ohio St. 176; American Ins. Co. v. Mahone, 56 Miss. 180; Carson v. Jersey City Ins. Co., 43 N. J. Law, 300; S. C., 44 N. J. Law, 210; Lebanon Ins. Co. v. Kepler, 106 Penn. St. 28. The distinction between an answer apparently complete, but in fact incomplete, and therefore untrue, and an answer manifestly incomplete, and as such accepted by the insurers, may be illustrated by two cases of fire insurance, which are governed by the same rules in this respect as cases of life insurance. If one applying for insurance upon a building against fire is asked whether the property is incumbered, and for what amount, and in his answer discloses one mortgage, when in fact there are two, the policy issued thereon is avoided. Towne v. Fitchburg Ins. Co., 7 Allen, 51. But if to the same question he merely answers that the property is incumbered without stating the amount of incumbrances, the issue of the policy without further inquiry is a waiver of the omission to state the amount. Nichols v. Fayette Ins. Co., 1 Allen, 63. In the contract before us the answers in the applications are nowhere called warranties, or made part of the contract. In the policy those answers and the concluding paragraph of the application are referred to only as "the declarations or statements upon the faith of which this policy is issued;" and in the concluding paragraph of the application the answers are declared to be fair and true answers to the foregoing questions," and to "form the basis of the contract for in

surance. They must therefore be considered, not as warranties which are part of the contract, but as representations collateral to the contract, and on which it is based. If the insurers, after being thus truly and fully informed of the amount and the place of prior insurance, considered it material to know whether any unsuccessful applications had been made for additional insurance, they should either have repeated the first two interrogatories, or have put further questions. The legal effect of issuing a policy upon the answer as it stood was to waive their right of requiring further answers as to the particulars mentioned in the twenty-eighth question, to determine that it was immaterial, for the purposes of their coutract, whether any unsuccessful applications had been made, and to estop them to set up the omission to disclose such applications as a ground for avoiding the policy. The insurers, having thus conclusively elected to treat that omission as immaterial, could not afterward make it material by proving that it was intentional. London Assur. v. Mansel, 11 Ch. Div. 363, distinguished. (2) If insurers accept payment of a premium after they know that there has been a breach of a condition of the policy, their acceptance of the premium is a waiver of the right to avoid the policy for that breach. To hold otherwise would be to maintain that the contract of insurance requires good faith of the assured only, and not of the insurers, and to permit insurers, knowing all the facts, to continue to receive new benefits from the contract while they decline to bear its burdens. Insurance Co. v. Wolff, 95 U. S. 326; Wing v. Harvey, 5 De Gex. M. & G. 265; Frost v. Saratoga Mut. Ins. Co., 5 Denio, 154; Bevin v. Connecticut Mut. Life Ins. Co., 23 Conn. 244; Insurance Co. v. Slockbower, 26 Penn. St. 199; Viele v. Germania Ins Co., 26 Iowa, 9; Hodsdon v. Guardian Life Ins. Co., 97 Mass. 144. Jan. 31, 1887. Phoenix Mut. Life Ins. Co. v. Raddin. Opinion by Gray, J.

REMOVAL OF CAUSES-DUE PROCESS-RESTRAINING VOID JUDGMENT OF STATE COURT.- In an action in a State Court against an administrator and another, judgment was rendered in the trial court in favor of the administrator. A new trial was awarded as to the other defendant, but not, it was claimed, as to the administrator. Upon appeal however from the judgment rendered upon such second trial, the State Supreme Court gave judgment against both defendants. Heirs of the estate brought a suit in the State Courts to annul this judgment, as against the estate, and to restain a sale of property of the estate under it, on the ground that it was void, as the administrator ceased to be a party to the action after the judgment in his favor therein. Held, that this suit was not removable to the United States Circuit Court upon allegations simply that the judgment was void, as being in conflict with the provisions of the fourteenth amendment to the Constitution, and an attempt to deprive the plaintiffs and petitioners of their property without due process of law. If the administratix of the estate of Hoggatt was not a party to the proceedings after the first judgment in her favor, no one can claim that the succession she represented was bound by what was afterward done in the suit. All depends on whether she continued to be in law and in fact a party; and this is to be determined by the effect of the original judgment in her favor, and the form of the proceedings thereafter. This may involve a consideration of the law and practice in Louisiana, but it is not, so far as any thing now appears on the record, at all dependent for its solution on any construction of the Coustitution or laws of the United States. Gold-washing & Water Co. v. Keyes, 96 U. S. 203. It is not enough for the party who seeks a removal of his cause to say that the suit is one arising under the Constitution. He must state the facts so as to enable the court to see

CLERK'S FEES FOR NATURALIZATION-UNITED STATES DISTRICT COURT. In an action on the bond of a clerk of a United States District Court, held, that he was not liable for fees received by him for naturalization of aliens, which had not been included by him in the returns of the "fees and emoluments of his office," required by Rev. Stat. U. S. § 833; it appearing that it had been the custom in the district for forty-five years for the clerks to charge a fee in naturalization cases, although no fee is provided in the fee-bill established by act of February 26, 1853, (ch. 80, Rev. Stat. U. S. § 823 et seq.) and that it had never been customary to account for such fees, and that defendant's accounts, during his term of office, had been duly certified by the judge, with knowledge of the omission, and audited and adjusted by the proper accounting officers of the government. In respect to naturalization cases, it has never been hitherto understood, either by the judges or the departments, that the fees of the clerk were for services rendered in his official capacity. At times, especially before elections, these applications are extremely numerous. The papers are usually prepared by the parties themselves, or their friends, or more frequently by agents of candidates. The hearings are ex parte, at no stated times, and it is rare that any person appears in opposition. It has therefore been necessary, both in the interest of the applicants and for the due and orderly execution of the law, and to enable the court to dispose of the cases, that the papers should be looked over and corrected by some person familiar with the law and practice, and in many instances that the witnesses should be examined before the cases were presented to the court for final action. It was for this service that the clerk had been allowed to make these charges to the parties. These are duties which the court has the undoubted right to have performed by some other person than the presiding judge. In these cases the clerk acts rather as a person appointed to assist the court in exercising its functions, like a master or examiner in an equity cause, or an assessor in admiralty, or an auditor in a suit at law. It is the universal practice of all courts of large jurisdiction to appoint special officers, at the expense of the parties, to make inquiries, investigate details, examine papers, take accounts, make computations, and perform ministerial acts. Their reports, when returned into court and accepted, become part of the case, and form the basis of the orders and decrees of the court in the cause. Reference has been made to the circular of Attorney General Devens, of January 14, 1879, issued to the clerks. In it he says, referring to section 833: "This language embraces every possible fee or emolument accruing to you by reason of your official capacity, and does not allow the withholding of any. Whatever is done by you that you could not do if out of office has an official color and significance that brings it within the compass of the language of the statute." This is undoubtedly a forcible and accurate statement of the meaning of the statute. But the naturalization fees do not come within the rule. They did not accrue to the clerk by reason of his official capacity, and were for work which might as well have been done by him when out of office as when in. It is also to be noticed that this circular calls upon the clerks for "a statement of sums received for searches, for all copies for naturalization papers and oaths, and all other sums received through your office," but makes no mention in terms of naturalization fees. Reg. Dep. Just. 1884, p. No complaint of these fees has ever come to the ear of

223.

the court from any quarter. On the contrary, this service performed by the clerks has been of great advantage to those seeking to be admitted as citizens. It has had the effect, as originally intended, to simplify the process of becoming a citizen, and to make it more expeditious and inexpensive. It saves the parties the expense of employing an attorney, and the fee charged therefor is much less than would be allowed by the fee-bill, if the application is to be treated and entered on the docket of the court as an ordinary suit. In rejected cases no fee has been charged. This practice has prevailed for more than forty years, ever since the act of 1842, which first required returns, and has been perfectly well known to everybody conversant with the courts. It was begun by Judge Story and Judge Sprague, and has had the approval of all the jndges of this district since their day. It has also had the sanction successively of the department of the treasury, the department of the interior, and the department of justice. Until this suit was brought, it has never been called in question by any accounting officer of the government; nor has Congress seen fit to put a stop to it by legislation. This construction of the statute in practice, concurred in by all the departments of the government, and continued for so many years, must be regarded as absolutely conclusive in its effect. Edwards' Lessee v. Darby, 12 Wheat. 206; U. S. v. Temple, 105 U. S. 97; Ruggles v. Illinois, 108 id. 526; U. S. v. Graham, 110 id. 219. In Edwards' Lessee v. Darby, 12 Wheat. 206, 210, it was said: "In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect." To the same effect are U. S. v. Dickson, 15 Pet. 141, 145; U. S. v. Gilmore, 8 Wall. 330; Smythe v. Fiske, 23 id. 374, 382; U. S. v. Moore, 95 U. S. 760, 763; U. S. v. Pugh, 99 id. 265, 269; Hahn v. U. S. 107 id. 402, 406, and Five per cent cases, 110 id. 471, 485. In the case of Brown v. U. S., 113 id. 568, the same doctrine was applied, the cases in this court on the subject being collected, and it being said that a "contemporaneous and uniform interpretation " by executive officers charged with the duty of acting under a statute "is entitled to weight" in its construction, "and in a case of doubt ought to turn the scale." A still more recent case on the subject is U. S. v. Philbrick, 7 Sup. Ct. Rep. 413, where this language is used: "A contemporaneous construction, by the officer upon whom was imposed the duty of executing those statutes, is entitled to great weight; and since it is not clear that that construction was erroneous, it ought not now to be overturned." Jan. 31, 1887. United States v. Hill. Opinion by Blatchford, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

AGENCY-CORPORATIONS-MANAGER ENGAGING DOCTOR FOR EMPLOYEE-LIABILITY.-(1) Where the general manager of a corporation sends a request to a physician by telegram, signed in the name of his company, to attend an employee wounded in a private brawl, the manager is acting outside of the scope of his authority, apparent and real, and the company is not liable to the physician. (2) If a physician is called to attend a case in the usual manner, and undertakes to do so by word or act, nothing being said or done to modify this undertaking, he is required to continue his attentions as long as the case requires, and is liable if he culpably abandon it; and if one engages a physician to attend an urgent case, and makes no lim. itation as to time, he is liable to such physician for all