Opinion of the Court.

the fees received in naturalization cases.

Rev. Stat. of 1836,

c. 88, § 15; Gen. Stat. of 1860, c. 121, § 22. This was changed by the act of 1879, c. 300, which defined what the fees in such cases should be, and directed the clerks to include them in their returns.

"The decision of the court is, that, upon the agreed facts in this case, this action cannot be maintained."

Viewing the whole subject in the light in which it appears on the face of the statute, in regard to the fees of the clerk, we are met by the fact that § 823 of the Revised Statutes, taken from 1 of the act of February 26, 1853, c. 80, 10 Stat. 161, provides that "the following, and no other, compensation shall be taxed and allowed" to clerks of the District Courts. This applies prima facie to taxable fees and costs in ordinary suits between party and party, prosecuted in a court. There is no specification of naturalization matters in the fees of clerks. From as early as December, 1839, the practice set forth in the agreed statement of facts has obtained in the District Court in Massachusetts, of charging the fees of $1 and $2, as gross sums, in naturalization proceedings, without any division for specific services, according to any items of the fee-bill. The act of March 3, 1841, before referred to, the first one on the subject of returns, implied that there should be reports of "fees and emoluments" by the clerk to the Secretary of the Treasury. The act of May 18, 1842, provided for semiannual returns to that officer, and included, specifically, fees and emoluments under the bankrupt act. But the clerk never has included in these returns his fees and emoluments for naturalization proceedings, and his action from 1842 to and including 1884 has been with the knowledge of the successive district judges, to whom his accounts have been semiannually exhibited. From 1842 to 1849 these accounts went to the Secretary of the Treasury; from 1849 to 1870, to the Secretary of the Interior; and since 1870 they have gone to the Attorney General. From 1856 the statute has required that these accounts, before going forward, "shall be examined and certified by the district judge," and that, after being sent to the several heads of departments, they shall be subject to revis

Opinion of the Court.

ion on their merits by the accounting officers of the Treasury Department. The agreed statement of facts shows that this course has been pursued; that the district judge has examined and certified the accounts, knowing that they did not include naturalization fees; and that those accounts have been revised on their merits by these accounting officers, for this long series of years, and been examined and adjusted by them with the naturalization fees not included.

With this long practice, amounting to a contemporaneous and continuous construction of the statute, in a case where it is doubtful whether the statute requires a return of the disputed fees, judges of eminence, heads of departments, and accounting officers of the Treasury having concurred in an interpretation in which those concerned have confided, the surety in the present bond, as well as his principal, had a right to rely on that interpretation in giving the bond; and the semiannual accounts of the principal having been actually examined and adjusted at the Treasury, with the naturalization fees excluded, down to and including the one last rendered five months before this suit was brought, a court seeking to administer justice would long hesitate before permitting the United States to go back, and not only as against the clerk, but as against the surety on his bond, reopen what had been settled with such abundant and formal sanction. This principle has been applied, as a wholesome one, for the establishment and enforcement of justice, in many cases in this court, not only between man and man, but between the government and those who deal with it, and put faith in the action of its constituted authorities, judicial, executive, and administrative.

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 United States v. Dickson, 15 Pet. 141, 145; United States v. Gilmore, 8 Wall. 330; Smythe v. Fiske, 23 Wall. 374, 382; United States v. Moore, 95 U. S. 760, 763;

Syllabus.

United States v. Pugh, 99 U. S. 265, 269; Hahn v. United States, 107 U. S. 402, 406; and Five per cent. Cases, 110 U. S. 471, 485. In the case of Brown v. United States, 113 U. S. 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 of ficers 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 United States v. Philbrick, ante, 52, where this language is used: "A contemporaneous construction by the officers 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."

Judgment affirmed.

PHOENIX LIFE INSURANCE COMPANY v. RADDIN.

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

Argued December 20, 21, 1886. Decided January 31, 1887.

Answers to questions propounded by insurers in an application for life 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 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.

Where upon the face of an application for life insurance, a direct question of the insurers appears to be not answered at all, or to be imperfectly answered, the issue of the policy without further inquiry is a waiver of the want or imperfection of the answer, and renders the omission to answer more fully immaterial.

A policy of life insurance stated that it was issued and accepted by the assured upon certain express conditions, one of which was that "if any of the declarations or statements made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, this policy shall be null and void." The application contained a

Argument for Plaintiff in Error.

number of printed questions "to be answered by the person whose life is proposed to be insured," and "declared that the above are fair and true answers to the foregoing questions," and that it was agreed by the applicant "that this application shall form the basis of the contract for insurance," "and that any untrue or fraudulent answers, or any suppres sion of facts," should avoid the policy. One of those questions was: “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?" To this question the applicant answered, "$10,000, Equitable Life Assurance Society." A policy of that society was in fact the only other existing insurance. Held, that the answers were not warranties, but representations; and that the issue of a policy, without further inquiry, was a waiver of the right of the insurers to require further answers as to the particulars mentioned in this question, and estopped them to set up that the omission, though intentional, to disclose unsuccessful applications for additional insurance was material and avoided the policy.

A bill of exceptions should not contain the whole charge of the court to the jury, but should only state distinctly the several matters of law excepted to.

A bill of exceptions cannot be sustained to an instruction or to a refusal to instruct in matter of law, without showing that there was evidence to which the instruction given or refused was applicable.

The acceptance by insurers of payment of a premium, after they know that there has been a breach of a condition of the policy, is a waiver of the right to avoid the policy for that breach.

Where the declaration in an action on a policy of insurance alleges that the consideration of the contract was the payment of a certain premium at once, and of future annual premiums, and the policy given in evidence is expressed to be made "in consideration of the representations made in the application for this policy" and of the sums paid and to be paid for premiums, and the application contains no promise or agreement of the assured, there is no variance.

THIS was an action at law to recover upon a policy of life insurance issued by the plaintiff in error. Verdict for the plaintiff below, and judgment on the verdict. The defendant below sued out this writ of error. The case is stated in the opinion of the court.

Mr. M. F. Dickinson, Jr., for plaintiff in error, cited: Woodruff v. Wentworth, 133 Mass. 309; Stone v. White, 8 Gray, 589; Pierce v. Charter Oak Insurance Co., 138 Mass. 151; Shultz v. Mutual Life Insurance Co., 6 Fed. Rep. 672; Cazenove v. British Assurance Co., 6 C. B. N. S. 437; S. C. on appeal,

Argument for Defendant in Error.

29 Law Journal, N. S. (C. P.) 160; Wright v. Equitable Life Assurance Co., 50 How. Pr. 367; Thompson v. Weems, 9 App. Cas. 671; Jeffries v. Life Insurance Co., 22 Wall. 47; Etna Life Insurance Co. v. France, 91 U. S. 510; Insurance Co. v. Trefz, 104 U. S. 197; Carpenter v. Providence Washington Insurance Co., 16 Pet. 495; London Assurance Co. v. Mansel, 16 Ch. D. 363; McDonald v. Law Union Insurance Co., L. R. 9 Q. B. 328; Edington v. Etna Life Insurance Co., 77 N. Y. 564; S. C. 100 N. Y. 536; Rivaz v. Gerussi, 6 Q. B. D. 222; McLanahan v. Universal Insurance Co., 1 Pet. 170; New York Life Insurance Co. v. Fletcher, 117 U. S. 519; McCoy v. Metropolitan Insurance Co., 133 Mass. 82; Batchelder v. Queen Insurance Co., 135 Mass. 449; Fowkes v. Manchester & London Insurance Co., 3 Fost. & Fin. 440; S. C. 3 B. & S. 915; Dilleber v. Home Life Insurance Co., 69 N. Y. 256; Connecticut Life Insurance Co. v. Union Trust Co., 112 U. S. 250; N. Y. Mutual Life Insurance Co. v. Armstrong, 117 U. S. 591; Moulor v. Insurance Co., 101 U. S. 708; In re General Provincial Life Assurance Co., 18 Weekly Reporter, 396; American Insurance Co. v. Mahone, 56 Miss. 180; Roehner v. Knickerbocker Life Insurance Co., 63 N. Y. 160; Railroad Co. v. Dubois, 12 Wall. 47; Taylor v. Ely, 25 Conn. 250; Insurance Co. v. Wolff, 95 U. S. 326; Devens v. Mechanics' & Traders' Insurance Co., 83 N. Y. 168; Bennecke v. Insurance Co., 105 U. S. 355.

Mr. Robert M. Morse, Jr. (Mr. William M. Richardson was with him on the brief), for defendant in error, cited: Hampshire Bank v. Billings, 17 Pick. 87; Stone v. White, 8 Gray, 589; American Insurance Co. v. Mahone, 56 Miss. 180; Connecticut Insurance Co. v. Luchs, 108 U. S. 498; Liberty Hall Association v. Housatonic Insurance Co., 7 Gray, 261; Bardwell v. Conway Insurance Co., 122 Mass. 90; Hall v. Peoples' Insurance Co., 6 Gray, 185; Lorillard Fire Insurance Co. v. McCulloch, 21 Ohio St. 176; Towne v. Fitchburg Insurance Co., 7 Allen, 51; Brennan v. Security Insurance Co., 4 Daly, 296; Fowkes v. Manchester Insurance Co., 3 Fost. & Fin. 440; Hoddson v. Guardian Life Insurance Co.,