The jurisdiction of the local office over a case is not abridged by the fact that it comes before such office on an order for a hearing issued by the Department or the General Land Office.

In proceeding against an entry on a special agent's report the burden of proof is upon the government, and such report is not competent evidence to be considered on final judgment.

Secretary Lamar to Commissioner Sparks, July 6, 1886.

On the 27th of May, 1881, John W. Hoffman made homestead entry of the S. E. of Sec. 5, T. 122 N., R. 63 W., 5th P. M. Aberdeen district, Dakota. After due notice he made final proof, April 22, 1882, showing that he was a single man, twenty-three years of age, a citizen of the United States, and in all other respects qualified to make homestead entry; that he settled upon the land July 25th, and took up his resi dence thereon October 1, 1881, and resided there continuously until date of final proof; that his improvements consisted of nine acres of land broken and cropped to oats; a frame house ten by twelve feet, constituting a comfortable residence; and a well-the total value of said improvements being $80.00.

On November 27, 1883-one year and seven months after final proof and payment had been received by the local officers-Thomas W. Jaycox, a special agent of your office, reported said entry fraudulent; whereupon your office, by letter of May 9, 1884, directed as follows:

Action on said entry is suspended, subject to the final determination upon the hearing which you will hold at a time to be fixed after consultation with the special agent, to enable him to appear and present testimony on the part of the government, and at which the entryman will be allowed full opportunity to defend the validity of the claim. Issue

2278 DEC- -1

3

_e, and ntinued

case at the case

peland (4

me agent; the claime motion; d the entry

least prima int; and not De considered,

gs in that case submitted which

d with. In the sented tending to of the government roken where the enmores, and to one hundred ntryman had sworn to but per se indicative of fraudald obtain no other evidence. ore it was not error to dismiss

sed in the decision appealed from without authority to dismiss this el, merely because the hearing had o not think that the fact of your office ted that a bearing be had in any case, om the hearing is ordered from proceedorder places any case to which it is made

ion of the register and receiver to ceedings at the hearing should be well recognized rules of practice rs. If, therefore, as was done in de, raising a question on matters for the hearing, the register and reand authority to grant or deny such rse subject to review by your office, upon insufficient grounds.

y 1, 1885, is therefore reversed.

due notice of the hearing, and inform the entryman of the nature and substance of the special agent's report, as above set forth, advising him that in default of an appearance at said hearing his entry will be finally canceled.

Hearing was had August 12, 1884. The only witness for the government was special agent Jaycox, who testified as follows:

On the 27th of October last I visited the claim of John W. Hoffman, and found a board shanty ten by twelve feet, and about forty acres of breaking; the total value of improvements on the claim were about one hundred and fifty dollars. I know nothing about the residence of the claimant on his claim only as I was told by settlers living near there

. I have made all the effort possible to obtain witnesses to testify in the case, but in every instance they have refused to attend because of threats that had been made against their persons and property

The witness stated to me the names of parties who told him of these threats, but I have no reason to think that Mr. Hoffman had anything to do with it. Mr. Hoffman was not, certainly, one of the parties named to me.

Upon this, counsel for claimant moved to dismiss the proceedings, on the ground that the government had failed to establish the allegations of the complaint. The register and receiver sustained the motion, dismissed the case, and reported to your office their action in the matter. Your office, on May 1, 1885, after reciting the facts of the case, decided that the action of the local officers

In attempting to dismiss proceedings in which this (your) office had exercised original jurisdiction was erroneous. The defendant having declined to submit testimony upon the merits of the case, action must be taken upon the facts as shown, by the testimony for the government and the agent's report. The special agent examined the land October 27, 1883, and found it uninhabited; and he filed with his report sworn testimony to the effect that the claimant never resided thereon. Said cash entry No. 2345, of John W. Hoffman is therefore held for cancellation.

In my opinion, the claimant in case at bar did all that was required of him under your order and in law. On the day of hearing he appeared, as he had been cited to appear, "to defend the validity of his claim." In the proceeding attacking the validity of his claim, the burden of proof was upon the government to establish, by competent evidence, the affirmative of the issue. See case of George T. Burns (4 L. D., 62). In that case it was also held that

The special agent's reports are not evidence, but simply the basis upon which hearings are ordered. Where the special agent has reported an entry, upon which final certificate has regularly issued, illegal or or fraudulent, and a hearing has been ordered under the circular of May 8, 1884, he should offer the proof in support of his allegations, after which the entryman should present his defense.

Thereupon the circular of April 22, 1885, upon which you base your decision in the case at bar, was modified, so as to make it "conform to the ordinary rules of judicial procedure." And according to the or dinary rules of judicial procedure, when a party has been cited to ap

pear at a certain time and place, and answer to a certain charge, and he does so appear, he is entitled to a trial, unless the case be continued upon a proper legal showing made by the other side. In the case at bar the party alleging fraud made no such showing, therefore the case was properly dismissed.

This case is in many respects similar to that of James Copeland (4 L. D., 275). In that case the investigation was made by the same agent; and as herein, after the government rested its case, counsel for the claimant moved to dismiss proceedings; the local officers sustained the motion; your office reversed the action of the local officers, and held the entry for cancellation. In deciding that case I said:

The testimony submitted by the government showed at least prima facie that the law had not been complied with by the claimant; and not being rebutted by any evidence proper on that hearing to be considered, it was error to dismiss the case against the government.

The conclusion that it was error to dismiss proceedings in that case was predicated on the fact that testimony had been submitted which showed prima facie that the law had not been complied with. In the case at bar, however, no evidence whatever was presented tending to show fraud; the only testimony submitted was that of the government agent, who testified to finding forty acres of land broken where the entryman upon final proof had shown but nine acres, and to one hundred and fifty dollars of improvements where the entryman had sworn to but eighty dollars-neither of which facts are per se indicative of fraudand concluded by announcing that he could obtain no other evidence. There was nothing to rebut, and therefore it was not error to dismiss the proceedings.

I can not concur in the view expressed in the decision appealed from that the register and receiver were without authority to dismiss this case on the motion made by counsel, merely because the hearing had been ordered by your office. I do not think that the fact of your office or the Department having directed that a hearing be had in any case, inhibits the officers before whom the hearing is ordered from proceeding as in other cases. Such order places any case to which it is made applicable, again within the jurisdiction of the register and receiver to whom the order is made, and the proceedings at the hearing should be in accordance with the general and well recognized rules of practice applicable to trials before those officers. If, therefore, as was done in this case, a motion to dismiss is made, raising a question on matters occurring subsequently to the order for the hearing, the register and receiver would have full jurisdiction and authority to grant or deny such motion-their action being of course subject to review by your office, and reversal if found to be based upon insufficient grounds.

Your said office decision of May 1, 1885, is therefore reversed.