On the fifth 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, judgments, 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 section 3 of the act of February 22, 1875, c. 95, (18 St. 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 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 forty-five 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 the 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 return 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 section 833 of the Revised Statutes, and that the settlements and adjustments of his several accounts, as above mentioned constitute no defense 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.'