age of majority he has followed that calling for a livelihood. It is conceded that he was physically present in the United States continuously from 1894 to 1897, but it is averred that subsequent to that time he has been here only at irregular intervals, and for comparatively short periods of time. There is, however, no contention that since his first arrival, in 1894, he ever claimed a residence or a home, or in fact resided, in any other country.

In the lower court a demurrer, calling into question the sufficiency of the petition, having been sustained, the petition was dismissed, and the appeal is from the judgment of dismissal. Here the cause was submitted without oral argument, with the privilege of filing printed briefs; but, although the time therefor has long since expired, no briefs have been presented. We can therefore only conjecture the precise nature of the government's contention.

[1] As a condition precedent to the right of the respondent to naturalization, it was doubtless necessary for him to show continuous residence in the United States for the period of at least five years; but it is not thought that this requirement is equivalent to, or necessarily implies, continuous physical presence. The certificate of naturalization having been issued three days before the act of June 29, 1906, went into effect, the case is controlled by the provisions of the Revised Statutes, which, however, in so far as they concern the present question, are not materially different from those of the later act. Section 2170 of the Revised Statutes (U. S. Comp. St. 1901, p. 1333) is as follows:

"No alien shall be admitted to become a citizen who has not, for the continued term of five years next preceding his admission, resided within the United States."

[3] It is familiar knowledge that the word "reside" is capable of different meanings, and when employed in a statute must be construed in the light of the context and the purpose of such statute; generally, however, it signifies nothing more or less than domicile. Some light is thrown upon the intent of Congress by the history of the statute. As originally enacted April 14, 1802 (2 Stat. 153, c. 28), the requirement was simply of five years' residence in the United States, and as then construed the term "residence" meant "domicile." In re an Alien, Fed. Cas. No. 201a. By the amendment of March 3, 1813 (2 Stat. 811, c. 42), the section was made to read as follows:

"No person who shall arrive in the United States, from and after the time when this act shall take effect, shall be admitted to become a citizen of the United States, who shall not for the continued term of five years next preceding his admission as aforesaid have resided within the United States, without being at any time during the said five years, out of the territory of the United States."

Through the change thus wrought Congress very clearly evinced its intention of requiring continuous physical presence. But, upon the other hand, the fact that in the revision the clause, "without being at any time during the said five years out of the territory of the United States," was omitted, would seem to indicate a purpose again to abandon this requirement. It has been held that under the present law

continuity of physical presence is not required. In re Schneider (C. C.) 164 Fed. 335; United States v. Cantini (D. C.) 199 Fed. 857. This we believe to be a correct interpretation both of the new law and of section 2170 of the Revised Statutes. To establish a residence there must doubtless be a concurrence of act and intent; but, when once established, temporary absences from time to time, unaccompanied by an intent to abandon or change the residence, do not operate to interrupt the continuity thereof. There is nothing in the naturalization act, other than the phrase itself, "has resided continuously within the United States," to indicate a purpose upon the part of Congress to require continuous physical presence, and in the practical administration of the law such a construction would entail consequences harsh in the extreme. Within reasonable limits, therefore, it is a question of fact, to be determined in the light of all the attendant circumstances of each particular case, whether the continuity of residence has been broken by temporary absences.

[2] In the present case it must be presumed that there were before the Massachusetts court sufficient facts to warrant the findings. The petition here does not put in issue the correctness of that court's conclusion upon the evidence before it, nor are we advised of the precise nature and extent of the showing upon which the findings were based. Directly it is stated only that:

"The said order and certificate of citizenship was procured from said court upon the representation that said respondent had resided within the United States for the continued term of at least five years immediately preceding the date of his application for citizenship in said court as aforesaid, and continuously since prior to his arriving at the age of eighteen years; whereas in truth and in fact respondent had not resided continuously in the United States for five years, nor continuously since prior to his arriving at the age of eighteen years, but had resided in the United States at the times and in the manner as set forth in the affidavit attached to this petition, and marked 'Exhibit A,' which is hereby referred to and made a part hereof."

But this general averment, involving, as it does, possible inferences of law as well as general conclusions of fact, is insufficient as a charge of perjured testimony or of other fraud. The controlling question is whether the respondent misrepresented or willfully withheld from the court any of the concrete, probative facts. He might very well have fully and fairly disclosed every fact set forth in the special agent's affidavit attached to the petition, and yet at the same time in good faith have represented to and urged upon the court that he had resided in the United States continuously for five years. To be sufficient, the petition must, in harmony with the general rule of pleading fraud, point out specifically in what particular respect the representations were false. This the petitioner has failed to do. Nor do the facts set up in the affidavit necessarily negative the respondent's right to admission. Standing alone and unexplained, it is true, they raise a very substantial doubt of his right; but in the light of other circumstances and details which may have been before the court, and which may have illuminated his motive and intent, that doubt may have been readily dissipated. Besides, it is not for a court in a proceeding of this character to review or set aside findings of the court of original juris

. diction, based upon conflicting evidence, or upon evidence reasonably susceptible to different inferences. In the absence of fraud, it must appear that the issuance of the certificate was illegal-was in some substantial respect against the law. The correctness of a finding of fact, so long as the same is within the bounds of reason, involves no question of law, and cannot be reviewed or disturbed.

Inasmuch, therefore, as the petition does not allege that the respondent deceived the court of original jurisdiction by misrepresenting or withholding any concrete fact, and does not so far disclose the evidence before that court as to enable us to say as a matter of law that it was insufficient to warrant a finding of five years continuous residence, it is insufficient, and the judgment of dismissal was right, and must be affirmed.

(208 Fed. 534)

GIBSON et al. v. UNITED STATES.

(Circuit Court of Appeals, First Circuit. November 6, 1913.)

No. 1,005.

1. POST OFFICE (§ 7*)-POSTMASTERS-SUIT ON BOND Defenses.

In an action on the bond of a postmaster to recover for money embezzled by him from registered letters, it is no defense that the senders of the letters were negligent in permitting themselves to be induced to send the same.

[Ed. Note. For other cases, see Post Office, Cent. Dig. §§ 7-14; Dec. Dig. § 7.*]

2. POST OFFICE (§ 7*)-POSTMASTERS-LIABILITY ON Bonds.

A postmaster is liable on his bond, conditioned as required by Rev. St. §3834 (U. S. Comp. St. 1901, p. 2610), for the faithful discharge of all the duties and trusts imposed on him by law or the regulations of the department, to the United States as bailee for the value of registered letters embezzled from the mails regardless of the liability of the government to the senders or owners of the letters.

[Ed. Note. For other cases, see Post Office, Cent. Dig. §§ 7-14; Dec. Dig. § 7.*]

In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge.

Action at law by the United States against James L. Gibson and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Alexander Murchie, of Concord, N. H. (Hollis & Murchie, of Concord, N. H., of counsel), for plaintiffs in error. C. W. Hoitt, U. S. Atty., of Nashua, N. H.

Before PUTNAM, DODGE, and BINGHAM, Circuit Judges.

DODGE, Circuit Judge. The postmaster's bond upon which the government sues was conditioned as required by Rev. Stats. § 3834 (U. S. Comp. St. 1901, p. 2610). The condition was that the postmaster should "faithfully discharge all the duties and trusts imposed on him either by law or by the regulations of the Post Office Depart

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ment.' It ran to the United States of America only, as do all such bonds, and was in the penal sum of $6,000.

The breach of condition alleged was the embezzlement by the postmaster of two registered letters, each containing $490 in money, whereby the United States was damnified.

The defendants, who are the sureties on the bond, denied that the plaintiff had been damnified by reason of anything mentioned in the condition.

The jury found, in answer to special questions submitted to them by the court, that the postmaster did convert to his own use two registered letters, specifically described, containing $490 each. Upon these special verdicts judgment was entered in favor of the government for $980 and interest.

1. As plaintiffs in error here, the defendants contend that the evidence did not warrant the findings made, and a verdict for them ought to have been directed. There was uncontradicted evidence for the government that the letters, having been registered and mailed, reached the North Conway post office, whereof the postmaster for whom the defendants were sureties had charge, and were there receipted for, one by the postmaster himself, the other by one of his assistants. North Conway was the post office to which the letters were addressed and from which they were to be delivered to the addressees, residents of North Conway. According to the government's evidence, one letter was received as above on April 27th, the other on May 23, 1910, but neither letter was ever delivered to its addressee. The defendants' evidence tended to show that both were deposited in the post office safe to await delivery, and that not only the postmaster, but also three of his clerks, and certain railway mail clerks who visited the office from time to time, had access to this safe. It also tended to show that there were other residents of North Conway having the same family name as the addressees, and that letters addressed as these were might have been delivered to others than the true owners. The defendants therefore argue that the evidence made it no more probable that the postmaster took these letters after their receipt at the office than that they were taken by others having access to the safe, or were misdelivered. But this contention disregards the further evidence tending to show that on June 6, 1910, a post office inspector discovered the postmaster to be heavily short in his accounts and to have taken money on postal orders made by himself in the names of various other persons; that he was thereupon removed and subsequently sent to a federal prison; that the two registered letters came from banks in neighboring places which had been led to mail the letters and the money they inclosed by letters purporting to come to them from the addressees in North Conway and inclosing notes purporting to be signed by those persons; and that the addressees referred to never wrote or signed these letters or notes or had any knowledge of them. Not only was the postmaster the person accountable for the letters after their receipt at the office by the express provisions of the Postal Regulations, but there was evidence for the jury that he was more likely to have been the person who

took them than any of the other persons shown to have had opportunity to take them.

[1] 2. The defendants also complain that certain evidence offered by them was excluded. As to the first exception of this kind (assignment of errors 2), we think the court was clearly right in refusing to let the defendants ask the post office inspector called by the government, in cross-examination, if he had not known of cases in which persons not entitled to registered letters had receipted for them, taken them, and "made away with the funds." The other exception of this kind (assignment of errors 3) complains of a refusal to admit evidence that the banks from whom the letters and money in question came were negligent in mailing them without verifying the signatures upon the papers they had received, purporting to be signatures of the addressees of the letters. In the view we take of this case, one who has intrusted a properly registered letter to the mail is entitled to the benefit of all laws and regulations intended for the protection and security of the mail, without regard to any of the circumstances which may have induced him to mail his letter. Whether the senders of these letters were negligent or not in relying on the genuineness of previous correspondence can have no bearing upon the extent of liability of the sureties, if the postmaster whose fidelity they guaranteed stole the letters. It was not conduct on the bailor's part which violated the terms of the bailment, as in U. S. v. Atlantic, etc., Co. (D. C.) 206 Fed. 190.

3. Under Rev. Stats. § 3926, as amended in 1897 (Act Feb. 27, 1897, c. 340, § 1, 29 Stat. 599 [U. S. Comp. St. 1901, p. 2685]) and in 1902 (Act April 21, 1902, c. 563), 32 Stats. 117, the Postmaster General had provided rules under which the sender or owner of registered matter like these letters was to be indemnified for losses thereof in the mails, out of the postal revenues, but in no case to exceed $25 for any one piece, or its actual value when of less amount. It appeared that the government had paid one of the banks $50 on account of its loss. Whether or not any payment had been made to the other bank did not appear.

[2] The defendants, besides asking the court to direct a verdict for them on the whole evidence, asked a ruling that their liability, if any, was limited to $50 in this case. The court refused and ruled instead:

"That the government's recovery was not limited to the sum which the gov ernment obligates itself to pay the sender of registered mail in case of loss, and that, being in possession of the funds sent through the mails, it is entitled to recover from the sureties to the full amount."

Of this refusal and ruling, and of the ordering of judgment for an amount exceeding $50, the defendants complain as error.

There are some official bonds, similarly conditioned, upon which the federal statutes expressly authorize any person injured by a breach to sue in his own name and for his own use. Such are the bonds required of United States marshals. See Rev. Stat. §§ 783, 784 (U. S. Comp. St. 1901, p. 607). There are no such express provisions applying to postmasters' bonds. This suit is in the name of the United States alone, without suggestion that it is at the relation