and unsupported by the evidence. The facts are substantially set forth in your opinion.

The land in controversy corners on the southwest with the NE. of Sec. 29, in the same township. On October 22, 1885, Mr. Corrigan made his final homestead proof on the last described tract, and on November 12, 1885, filed his declaratory statement for the land in question, alleg. ing settlement thereon October 28, 1885. His witness, William Liston, testifies that he thinks the claimant removed from his homestead to Culbertson, Nebraska, on November 8, 1885; that about February 20, 1886, he made his first act of settlement on the land in question, and about April 1, thereafter, he moved with his family from Culbertson to his pre-emption claim.

He further swears that claimant told him "inside of two or three weeks after he made final proof" that he (claimant) "did not want any more land," and did not want to pre-empt the land in controversy. Claimant told the same in substance to his witness, Bullard. It was exactly three weeks from the time he made his final proof on his homestead entry until he filed his declaratory statement for the land in controversy, so that his statement to Liston was probably not sincere. If, as Liston says, he moved from his homestead to Culbertson on November 8, he made the filing within four days after such removal.

The evidence further shows that he moved the house from his homestead claim to his adjoining pre-emption claim, and after he had proved up on that (October 19, 1886,) he moved the same house to his timber culture claim in section 31, of the same township, where he was living at date of hearing. He failed to testify at the hearing as to what his intentions were when he moved from his homestead; and the statements made in his affidavit, accompanying his appeal, as to such intentions, can not now be considered. Rule 72 of the Rules of Practice; Crow v. Andrus, 5 L. D., 425; Knox v. Bassett, 5 L. D., 351. It is shown that he moved from his homestead to a house he caused to be built in Culbertson, where he staid about four months; thence he removed to his pre-emption claim; and it is insisted that these acts do not constitute an abandonment of his residence on his own land to reside on the public land, and therefore not inhibited by the second subdivision of section 2260 of the Revised Statutes.

I think from all the facts and circumstances in this case, that claimant's residence in Culbertson was intended to be only temporary, and, if so, his temporary removal from land of his own prior to the establishment of residence on his pre-emption claim will not take such claim out of the inhibition contained in said statute. Ott v. Crawford, 10 L. D., 117.

I am also of the opinion that this removal to Culbertson was a mere subterfuge to evade the provisions contained in the inhibitory clause in said statute. I am strengthened in this opinion by the fact that his alleged settlement on the pre-emption claim antedated his removal from

his homestead, and whatever the facts really are, he should not be permitted to deny his own statement, which he caused to go on record, in order to avoid the effect of the same in his efforts to secure more gov. ernment land. It can hardly be said, when he moved from his homestead to Culbertson, on November 8, that he did not intend at that time to move to the pre-emption claim, when he filed on the same four days later. On the contrary, the facts warrant the conclusion that he did intend such removal.

I concur in the conclusions reached in your decision that this entry should be canceled. It is so ordered and the judgment appealed from is affirmed.

PURCHASE UNDER THE ACT OF JUNE 15, 1880-AFFIDAVIT.

GRAHAM v. GARLICHS.

An affidavit of identity is not required of the original entryman where he applies to purchase under section 2, act of June 15, 1880, and the duplicate receipt accompanies the record.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, December 5, 1890.

December 8, 1879, Julius Ipsom made homestead entry for the NW. Sec. 15, T. 4 S., R. 22 W., Kirwin, Kansas. May 19, 1884, he executed a power of attorney, authorizing Hugh McCredie, in his name and for his use, to make final proof for the same "under the 2d section of the act of June 15th, 1880, 21 Stat., 237." June 24, 1884, McCredie, in virtue of his said power of attorney, made and subscribed the cash proof affidavit required of the entryman, and received final certificate in the name of Julius Ipsom.

The land was several times transferred, and on the 21st of April, 1886, was conveyed by warranty deed to Garlichs, appellant herein. April 18, 1885, the said cash entry was suspended by your office, because the required cash proof affidavit was made by a person other than the entry man.

March 20, 1888, George Graham applied to contest the said cash entry, alleging the proof to be insufficient by reason of the affidavit aforesaid. His application was held to await the action of Garlichs, in relation to the suspension of Ipsom's cash entry.

June 14, 1888, Garlichs filed with the register and receiver an abstract of the record showing his ownership of the land, and an affidavit to the effect that he was an innocent purchaser, without notice of the defective affidavit, or of the action of the Commissioner in suspending the entry, and that he had made diligent inquiry to learn the whereabouts of Ipsom, with a view to procuring from him a proper affidavit, but had been unable to find him, and asked that the personal affidavit

of Ipsom be dispensed with, the cash proof already on file accepted, and the land passed to patent. This application was referred to the Commissioner, and, on October 17, 1888, the Commissioner allowed him sixty days (additional) in which to procure and file Ipsom's affidavit.

Garlichs failed to furnish the required affidavit, whereupon your office, by its letter of June 1, 1889, held the said cash entry for cancellation, and Garlichs now appeals.

The affidavit of identity, etc., is required only when the original homestead party applies to enter and "has lost his duplicate receipt." General Circular of January 1, 1889, page 19.

In the case at bar, Ipsom's duplicate receipt accompanies the record. The affidavit was therefore unnecessary.

Graham's contest is dismissed, and you will direct a patent to issue to Garlichs.

Your decision is reversed.

SUSPENDED ENTRY-SEGREGATION.

MELVIN P. YATES.

The suspension of an entry does not relieve the land covered thereby from reservation, hence during such suspension the entry of another for said land cannot be allowed.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, December 5, 1890.

I have considered the appeal of Melvin P. Yates from your office decision, dated February 16, 1889, rejecting his application to make homestead entry on the NE. of Sec. 28 T. 7 S., R. 28 W., Oberlin, Kansas. The record shows that on November 21, 1884, Horace G. Pearson filed pre-emption declaratory statement for above described tract, and on June 24, 1885, he made cash entry for the same. His proof shows that he had resided on the tract since December 1, 1884, cultivating and improving it. June 16, 1888, your office suspended said cash entry for insufficient residence and improvements, and allowed Pearson sixty days, without republication of notice to file additional evidence.

It also appears that notice of said suspension was sent to Pearson's last address at Hoxie, Kansas, but he was then living in Pasadena, California. September 5, 1888, a second notice was sent to Pasadena, which he received.

September 24, 1888, Melvin P. Yates, applied to make homestead entry upon the same tract, which was rejected same day, by the local Jand office for the reason that said tract is covered by cash entry of Horace G. Pearson.

Yates appealed from this action to your office, where, on February 16, 1889, you affirmed the decision appealed from. Thereupon he still further prosecutes his appeal to this department.

At the time this application was made, Horace G. Pearson's entry of the tract was of record, uncanceled and was notice to this claimant and all the world of his claim to this land.

His entry, though suspended temporarily, is nevertheless an entry, and withdraws the land embraced therein from market until such time as the same may be finally acted upon. See Henry Cliff (3 L. D., 216). A mere suspension of Pearson's entry until he could furnish the additional proof called for does not open this land for entry to the public. And the allowance of sixty days' time for furnishing such proof does not necessarily mean that at the end of that time his entry should be canceled. Circumstances might have arisen during the allotted time which in the discretion of the Commissioner of the Land Office, would be sufficient cause for granting more time.

In this case it appears by reason of Pearson's change of residence the sixty days' time was consumed before he received notice of the action of the General Land Office. The notice was sent to him September 5th and on October 16th, 1888, he began to take steps to comply with the order of the Land Office, ordering him to furnish additional proof.

There could not be two entries at the same time on the same land. Russell v. Gerold (10 L. D., 18); Geer v. Farrington (4 L. D., 410). It therefore follows that the application of Melvin P. Yates to make homestead entry was rightly rejected.

Your office decision is affirmed.

ALABAMA LANDS-ABANDONMENT.

JAMES E. JOLLY.

An additional homestead entry of land reported, prior to the act of March 3, 1883, as containing coal, can not be allowed until after public offering.

An entry of a less amount than that covered by settlement operates as abandonment of the land not included within the entry.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, December 6, 1890.

I have considered the appeal of James E. Jolly from your office decision of October 14, 1889, rejecting his homestead application to enter the SE. of NW. Sec. 22, T. 14 S., R. 3 W., Huntsville, Alabama.

The record shows that applicant made entry for the S. of NE. 1, Sec. 22, T. 14 S., R. 3 W., in 1876; and that he has resided thereon with his family ever since. In his present application he asks the privilege of entering the tract above as additional to his original entry of 1876.

July 24, 1889, the local office rejected this application for the reason that he did not allege settlement prior to March 3, 1883, and that the land is classed as mineral.

Your office affirmed the decision of the local office. Whereupon applicant appealed to this Department.

According to the statements of your office the tract sought to be entered had been reported as containing coal prior to the act of March 3, 1883 (22 Stat., 487).

It must, therefore, have been offered at public sale before it is subject to entry. The tract in dispute had not been offered at public sale prior to this homestead application. It follows that unless applicant's rights attached to this land before the act of March 3, 1883, he can have no right now.

The question therefore arises did James E. Jolly make settlement on the tract in controversy before March 3, 1883.

His application is dated July 23, 1889, more than six years after the passage of said act. The attorney for applicant argues that settlement should date back to the time of the original entry in 1876 under the act of May 14, 1880. I do not believe the argument is well taken, because if applicant claims settlement now he must have claimed settlement of this tract at the time of his entry of the original eighty acres in 1876. If so, his entry of the eighty acres will operate as an abandonment of the tract now in dispute. See Cayce v. St. Louis and Iron Mountain Railroad company (6 L. D., 356); see also Nix v. Allen (112 U. S., 129). Your office decision is affirmed.

PRACTICE-CERTIORARI-APPEAL.

SMITH V. NOBLE.

An application for the writ of certiorari will be denied, if it appears that the appli. cant has not sought relief by appeal.

Secretary Noble to the Commissioner of the General Land Office, December 6, 1890.

I am in receipt of your letter of September 11, 1890, transmitting an application for certiorari filed by Robert Smith in the case of said Smith against Spencer V. Noble.

It appears that on August 7, 1882, Noble made "mineral entry No. 116, for placer claim No. 1, above discovery and upper one hundred feet of discovery and hill claims adjoining on southeast" Deadwood series, now Rapid City, Dakota, and that subsequently on June 16, 1890, the local officers forwarded a protest filed by Smith, alleging that he was the owner of a portion of said claim by purchase, that he has resided thereon and cultivated it for ten years, "that the part so occupied by him is thirty feet above the remainder of the claim, and of the placer ground on Whitewood Creek; that no placer mining had been done thereon other than prospecting, since he has resided thereon and for years previous; that no one has made any claim to said premises, set