Before any one can purchase from the United States the tract described, the title thereto must be restored to the United States.

You will inform the applicant that if he will prepare a statement and application, supported by corroboratory affidavits, as required by departmental circular instructions of February 13, 1889 (8 L. D., 348), and supplemental instructions of August 30, 1890 (11 L. D., 229), and transmit the same to the Department, through the proper channel, such statement and application will be duly considered, with a view to recommending to the Honorable Attorney General the institution of suit to cancel and set aside said patent, as provided for in Sec. 2 of the act of March 3, 1887 (supra).

PRACTICE-DEATH OF DEFENDANT NOTICE-ATTORNEY.

DRISCOLL v. JOHNSON.

Where a party dies prior to hearing his attorney is without authority to enter appearance, or thereafter prosecute an appeal in the name of the decedent.

The rules of practice do not authorize the service of notice of contest on a resident defendant by registered letter.

Where the entryman dies prior to the service of notice, his heirs and successors in interest should be made parties to the action, and duly served with notice thereof. First Assistant Secretary Chandler to the Commissioner of the General Land Office, December 19, 1890.

May 5, 1886, Edmund P. Johnson made homestead entry for the NE. 4, Sec. 17, T. 27 N., R. 46 W., Chadron, Nebraska.

December 31, 1887, Edward Driscoll filed an affidavit of contest against the same. Notice of contest was served upon Johnson by regis tered letter, in which the hearing was set for February 15, 1883, testimony to be taken before a notary public at Box Butte, Nebraska, on February 10.

On said last date, at 8 o'clock A. M., the defendant was killed by the accidental discharge of a gun, but the contestant proceeded with his testimony before the notary. On the return day (February 15) Johnson's attorney appeared before the register and receiver and moved to dismiss, because of defective service of notice. The motion was overruled, and the contestant allowed to "file supplemental affidavit and proceed against the heirs." From this action Johnson's attorney appealed.

Your office decision of June 30, 1888, affirmed the action of the reg ister and receiver, and Johnson's attorney again appealed.

Johnson having died prior to the hearing, his attorney had no authority to appear for him. The relation of attorney and client ceased on the death of the client. Nor can a dead man appeal by attorney. Consequently, there is no appeal pending here.

Johnson was never properly served with notice. The rules of practice

provide for but two methods of service of notice of contest: 1st, Personal service, which is made by delivering a copy of the notice to the defendant. 2d, When the defendant is a non-resident of the State or Territory, or can not be served personally, notice may be served by publication, as provided in Practice Rules 11, 13, and 14.

There is no provision for service by registered letter.

As this is the first time within my observation that service of notice of contest on a resident defendant has been attempted by registered letter, and as the language of some of the decisions of this Department may seem to authorize such manner of service, I deem it advisable to refer to these decisions, with a view to reconcile them, if possible, to the rules and regulations governing practice before the district and General Land Offices.

In the case of Anderson v. Tannehill et al., 10 L. D. 388, an order of publication was made against the claimant; whereupon Stenson, his transferee, appeared and disclosed, under oath, his ownership of the land in controversy; he was allowed to intervene, and moved to dismiss the contest because no publication had been made against Tannehill, the original claimant. New notice was then issued, and publication made, fixing a later date for the hearing, at which date Stenson again appeared and moved to dismiss all proceedings, because the record failed to show that the notice was posted upon the land. This motion was sustained, and a new order of publication made, November 27, 1887, fixing January 11, 1888, as the day of hearing, when Stenson appeared for the third time and moved to dismiss the contest, because no personal service had been made upon him (Stenson), although he was a resident of the State. Upon a showing that notice had been given Stenson by registered letter, which had been received by him more than thirty days before the day set for hearing, his motion was overruled, and the Secretary in affirming the action of the Commissioner says: "In the first place, this objection is purely technical; as a matter of fact transferee was notified by registered letter, and upon said notice appeared to move a dismissal," etc.

This holding was undoubtedly correct, for Stenson, not having disclosed his ownership of the land prior to the commencement of proceedings against the entry, was not entitled to be served with notice as an original defendant, and when he afterwards appeared and made oath to his ownership, he thereby was in court, asking to be allowed to defend against the contest. This was an appearance to the merits, so far as he was concerned, as transferee of the claimant. He found "no fault with notice to the entryman, but only contended that he was entitled to the same kind of personal service as the entryman would be if living within the State.

The last clause of said decision, that "Service by registered letter is personal service, as required by Rule 15 of Practice," being unnecessary, may be regarded as obiter dictum.

Rule 15, referred to, has no reference to the mode or manner of personal service, but relates exclusively to the manner of proving such service, and says that it shall be (that is, proof of service, as prescribed in Rule 9, shall be) the written acknowledgment of the person served, or the affidavit of the person who served the notice attached thereto, stating the time, place, and manner of service."

The manner of making personal service, as prescribed in Rule 9, consists in the delivery of a copy of the notice to each person to be served." That this service has been so made can be proven by the written acknowledgment of the defendant or by the affidavit of the person serving him, as per Rule 15. This acknowledgment by the defendant, under the practice that obtains in nearly all courts of law, is endorsed on the back of the notice, or a copy thereof, and dispenses with the return of the officer serving the same. This is the kind of written acknowledgment contemplated by Rule 15, and it was never contemplated that service by registered letter is equivalent to personal service.

The distinction is clearly recognized in Rule 17, which provides that "Notice of interlocutory motions, etc., may be served personally or by registered letter through the mail."

By Rule 18 proof of service by mail is not shown by the receipt alone, but such receipt must be accompanied by "the affidavit of the person who mailed the notice."

In the case of William W. Waterhouse, 9 L. D., 131, the defendant was a non-resident, and an attempt was made to notify him by publication. The notice was not published for the proper length of time, but it having been shown by the "return card" that he had received notice of the hearing by registered letter-received by him at Oshkosh, Wisconsin, the land being in Dakota-the notice was held sufficient.

The sending of notice by registered letter is provided for where notice is given by publication (see Rule 14), whereas no such provision is made when personal service is required.

This case is not parallel with the one at bar, nor is it authority for serving a resident defendant by registered letter; neither are the cases therein cited.

In Crowston v. Seal, 5 L. D., 213, the defendant was a non-resident. In the case of the New Orleans Canal and Banking Company v. State of Louisiana, cited in support of Waterhouse, supra, the notice under discussion was a notice of appeal and not of contest, and the Rules of Practice provide for serving notice of appeal by registered letter, and in that case it was merely held that notice sent by unregistered letter was sufficient, when receipt of such unregistered letter was admitted by the party to whom it was sent and who was the party entitled to notice.

The other case of Ida May Taylor, 6 L. D., 107, there cited, has refer ence to notice of the decision of the Commissioner canceling an entry, notice of which may also be made through the mail.

While notice of interlocutory motions, orders, and nearly all proceedings occurring after jurisdiction is once obtained, may be made through the mail, there is no provision in the Rules of Practice for acquiring jurisdiction over resident defendants through such service. Nor in my judgment should there be.

The notice of contest takes the place of a writ of summons in common law courts, which is a "due process of law," without which no man may be deprived of his property. This writ of summons, in all the States to which my research has extended, is required to be served by a sworn officer of the law.

This Department has so far departed from this general rule of prac tice as to allow notice of contest to be served by persons other than officers of the law, but it has not authorized service by mail of a writ which confers jurisdiction to deprive a defendant of all his property.

Johnson having died. before he was served with notice, the local officers obtained no jurisdiction of his person. There being no action pending at his death, it could not be revived against his heirs.

It follows that the action of the local officers was right in allowing a new affidavit to be filed, making his heirs and successors in interest parties defendant, and directing notice to be issued against them, in compliance with the Rules of Practice, above noted. The decision of your office is affirmed.

RAILROAD GRANT-CONFLICTING LIMITS-ADJUSTMENT.

CHICAGO, ST. PAUL, MINNEAPOLIS AND OMAHA RY. Co.

The definite location of the Northern Pacific road did not take effect upon lands within the previous indemnity withdrawal made under the act of May 5, 1864. Where the primary limits of one company conflict with the indemnity limits of another, and both derive their grants from the same act, the former is entitled to the lands in question, without regard to priority of location or construction. The second proviso in section 5, act of March 3, 1887, applies only to the case of lands, which at the date of the passage of the act had been settled upon after December 1, 1882, by parties claiming in good faith a right to enter the same under the settlement laws, in ignorance of the rights or equities of others in the premises.

In the final adjustment of a grant the Department must be controlled by statutory authority, and can not depart therefrom to protect parties claiming rights under an alleged purchase from the company.

Previous instructions for the restoration of indemnity lands modified, and directions given for the disposition of applications to purchase under the act of March 3, 1887.

Secretary Noble to the Commissioner of the General Land Office, December

19, 1890.

On February 12, [11] 1890, I approved for patent lists 13, 14 and 15 of lands for the benefit of the Chicago, St. Paul, Minneapolis and

Omaha Railway Company, and sent them to you, with a letter of instructions bearing even date, 10 L. D., 147. Before any action was taken by your office in the premises, you were verbally directed to return said lists and letter of instructions to me; which was accordingly done. The reasons which actuated me in thus suspending action as above stated, no longer existing I herewith forward to you said lists and letter, with directions to carry out the instructions in said letter, as modified herein. You were informed that this action closed the adjustment of the congressional land grants for the benefit of said road, and you were directed to restore to the public domain and throw open to settlement the surplus lands theretofore withdrawn for indemnity purposes, under the grants for said road. It was provided, however, that—

the order of restoration shall not affect rights acquired within the primary or granted limits of any other congressional grant;" nor "take effect or be so construed as to authorize the acquisition or recognition of any rights to said lands or any portion thereof until thirty days after notice thereof, through advertisement, shall have been previously given by the officers of the district land office.

Afterwards two letters were received from you, dated respectively the 10th and 14th of February last, in relation to the revocation of said withdrawal. In the letter of the 10th, which was received after mine of the 12th was sent, you call attention to the fact that of the surplus lands to be restored a portion lie within the fifteen mile or indemnity limits of the Omaha grant, under the act of June 3, 1856 (11 Stat., 20), and a portion within the twenty miles or indemnity limits of the grant to said company under the act of May 5, 1864 (13 Stat., 66); and that the primary limits of the Wisconsin Central Railroad, under the same grant of May 5, 1864, supra, and the primary limits of the Northern Pacific Railroad under its grant of July 2, 1864 (13 Stat., 365), in regard to portion of said lands, overlap the aforesaid limits of the Omaha road; and you desire a determination of the respective rights of the different roads within these conflicting or overlapping limits.

Upon particular inquiry at, and a more careful examination into the matter by, the Railroad Division of your office, it is learned that there will be no surplus lands within the fifteen miles limit of the Omaha road, which are covered by the primary limits of the Northern Pacific Railroad-such lands having been dealt with in the adjustment heretofore made. But there are lands within the twenty mile limits which are covered by the primary limits of the Northern Pacific road, as stated by you.

As before said, the Omaha grant was made May 5, 1864; that of the Northern Pacific July 2, 1864; and the indemnity withdrawal of the Omaha Company was made February 28, 1866, and the definite location. of the Northern Pacific on July 2, 1882. Consequently, at the date of the definite location, the lands in question were set apart by executive order for the indemnity purposes of the Omaha grant. And the ques tion is, did this condition except them from the operation of the Northern Pacific grant?