he has no barn on the land for the reason that he has heretofore hired all of the breaking and cultivating done, and will not have any use for one until he takes off the crop for the present season; and that while he has been unable to build a better house up to this time-much to his regret-yet he will, if no accident occurs, build a better house in the fall ensuing.

On August 28, 1885, your office refused said motion, and the decision states that "Claimant served in the army and lost a leg in said service. He made final proof within the shortest period allowed by the statute, viz: one year-claiming a credit of four years for army serv ice. . . . . This office views with suspicion cases where the entryman makes final proof within the shortest period allowed by legal requirements, when good faith is not clearly and conclusively shown, by the character of the improvements, residence and cultivation. If Gates is sincere in desiring to obtain title to the land for a permanent actual home, to the exclusion of all other homes, as contemplated by law, he may submit final proof anew, when he can establish these facts to the satisfaction of this office. I see nothing in the evidence now submitted which entitles the claimant to a reversal or even modification of my former decision in the case."

It will be observed that the former decision of your office held Gates's entry for cancellation and the subsequent decision seems to so modify the former, as to allow Gates to submit new final proof.

Section 2305 of the Revised Statutes provides that, "the time which the homestead settler has served in the Army, Navy, or Marine Corps, shall be deducted from the time heretofore required to perfect title but no patent shall issue to any homestead settler who has not resided upon, improved and cultivated his homestead for a period of at least one year after he shall have commenced his improvements."

It is evident that Congress intended that the time allowed for military service should be deducted from the five years' residence required of the entryman before the issuance of final certificate, and that the residence and cultivation required of the discharged soldier or sailor are of the same character as those required of other homestead entrymen. In the present case the entryman made the preliminary affidavit required, and after due notice made his final proof four days after the expiration of the year from the date of settlement and residence on said tract. His final proof was made before the local land officers and to their satisfaction. It does not appear that said proof was in any respect false or fraudulent. The supplemental affidavits set forth in detail the cause of Gates' temporary absence from the land, the amount of cultivation done upon the land and the further fact that since making said entry Gates has continued to live upon the land, making it his home to the exclusion of any other.

2278 DEC-14

The mere fact that the homestead entryman offers his final proof at the expiration of the time prescribed by law is not of itself a suspicious circumstance. In every case the entryman should show good faith, whether the proof is offered at the expiration of the five years, or within two years thereafter.

The local land officers before whom the final proof was made accepted the same and issued the final certificate. The supplemental proof sus tains the final proof, gives a reasonable explanation of the temporary absence of the entryman, and the failure of his wife to live on the land. There is no adverse claimant, and there is not sufficient evidence to warrant the finding that the entryman has acted in bad faith. It is therefore considered that said decision canceling said entry be and the same is hereby reversed.

FINAL PROOF-ADVERSE CLAIMANTS.

QUIRK v. STRATTON.

On the day fixed for submission of final proof, adverse claimants who have received due notice thereof, must appear and show cause why such proof should not be accepted, or lose the right to be subsequently heard therein.

Secretary Lamar to Commissioner Sparks, October 30, 1886.

On April 21, 1884, Francis I. Quirk made homestead entry for Lots 2, 3 and 4, Sec. 6, T. 108 N., R. 63 W., Mitchell, Dakota. On April 24, 1884, Bowman L. Stratton filed declaratory statement for these tracts, alleging settlement April 21st preceding.

Stratton gave the usual notice of intention to make proof, specially citing Quirk. In accordance with said notice Stratton submitted proof on December 20, 1884. On that day one Edward Devy appeared as attorney for Quirk, and filed the following request: "I hereby specially appear for said Francis I. Quirk, and ask that a hearing be ordered in the above entitled case to determine the rights of both parties thereto." Said request is indorsed: "Filed Dec. 20, 1884, 10:30 A. M." Upon the question of ordering a hearing the register and receiver were divided in opinion. The former held: "An order for a hearing is disallowed for the reasons that it appears that Quirk was specially notified to appear at this office on December 20, and show cause why the proof should not be allowed and made of record. He gives no reasons for his failure to put in testimony on that day. And this proof is al lowed and transmitted under the instructions contained in Marquardt v. Olson."* The receiver held: "I do not concur in the opinion of the register. I think a hearing should be ordered." Your office, by letter of May 4, 1885, affirmed the opinion of the register rejecting the request for a hearing. Quirk's attorney filed appeal.

* 11 C. L. O., 213.

Quirk was specially cited in order that he might present objections to the final proof. Good practice and despatch of business require that he should appear on the day named in the notice and submit his objections. If, however, more time be necessary to obtain evidence, or to secure a full presentation of his case, upon proper showing, he is entitled to a continuance. In the present case Quirk's attorney did not offer to cross-examine the witnesses, nor did he allege any reason for the postponement of the case. Had he shown that he was not prepared for trial, or that a continuance of the case would in any manner benefit him, a different question would be presented. On the showing made by the record, the request for a hearing was properly denied, and said decision is accordingly affirmed.

PRACTICE-TIMBER CULTURE CONTEST.

DAVIS v. BOTT.

The contestant having offered, on the day of hearing, to cure certain defects in lis application to enter was thereafter entitled to proceed with the contest.

Secretary Lamar to Commissioner Sparks, October 30, 1886.

In the case of Clarence H. Davis v. Vallentin Bott, involving the NE. of Sec. 10, T. 108 N., R. 36 W., 5th P. M., Tracy, Minnesota, an appeal has been filed in behalf of Bott from the decision of your office, rendered January 21, 1885. The material facts to be considered herein are as follows:

On the 13th of February, 1880, Bott made timber-culture entry No. 1269 of the tract specified; and on the 13th of March, 1884, Davis filed affidavit of contest against said entry, the charge being a failure to comply with the law in the matter of planting and cultivating. Hearing was set for May 30, 1884, at which date the defendant appeared specially and moved to dismiss the case on the following grounds:

First, Because the affidavit accompanying the application to enter under the homestead law was sworn to before a notary public, who is not an officer authorized to administer oaths in homestead cases; and Second, Because said homestead application was unsigned. At the same time the contestant offered to sign his said application, and have it filed nunc pro tunc, and also offered to file a new affidavit sworn to before the proper officer.

The local officer sustained the motion of defendant to dismiss, basing their ruling on the Bundy-Livingston case (1 L. D., 179); but, on ap peal, their decision was reversed by your office in the decision before mentioned, and the contestant was allowed the right to proceed with bis contest, under the ruling in Bennett v. Taylor (2 L. D., 48).

I am of opinion the judgment of your office was correct. The offer of Davis, made on the day set for hearing, to cure whatever defects there

were in his contest was good, under the rule in Ferrier v. Wilcox (4 L. D., 470), and cited cases.

The decision appealed from is therefore affirmed, and the contest of Davis will proceed in regular order.

PRACTICE-APPEAL-EVIDENCE.

BUSHNELL v. Burtt.

Rules 48 and 49 of Practice contemplate the reversal or modification of a decision of the local office, if it is contrary to existing laws or regulations, though the appeal therefrom is not filed in time.

When testimony in a contest is taken before an officer, other than the register or receiver, the order therefor should be made of record in the local office.

After the dismissal of contest it should not be re-opened, and proceedings had thereunder, without due notice to the defendant.

Secretary Lamar to Commissioner Sparks, October 30, 1886.

I have considered the case of D. W. Bushnell v. Harry D. Burtt, involving the latter's timber-culture entry No. 1404 on the SW. 1 of Sec. 4, T. 114, R. 75, Huron, Dakota, on appeal by Bushnell from your de cision of May 8, 1885, holding his entry for cancellation.

Your said decision was made upon the appeal of Bushnell from the action of the local officers, urging that said action was irregular and contrary to existing regulations, and it dismissed the appeal because it held said action to be regular and proper and because said appeal was not filed within the prescribed time. The record shows that said appeal was not filed within the thirty days prescribed in Rule 44. Rules 48 and 49 contemplate, however, that a decision of the local officers shall be modified or reversed, as the case requires, notwithstanding a failure to file the appeal in time, "where the decision is contrary to existing laws or regulations." As irregularity and illegality in the decision of the local officers is charged in Bushnell's appeal to your office, I will consider his appeal from your decision refusing to find such irreg ularity and illegality.

The papers before me show that Burtt's timber culture entry was made March 5, 1883, and that on March 6, 1884, Bushnell filed affidavit of contest against it, alleging failure to break during the first year. The testimony, it appears, was taken before one I. E. Youngblood, a notary public, on May 22, 1884; but there is no record of the order of the local officers on which it was taken. This is certainly an irregularity on the face of the record. It was perhaps the want of such order that caused the mistake under which the local officers after wards dismissed the contest, as hereinafter referred to.

It also appears that service of notice of the hearing was made by publication, upon Bushnell's affidavit, stating that Burtt's residence. was unknown to him. Under settled rulings, such an affidavit is insuf

ficient, and the notice under it invalid. Ryan v. Stadler (2 L. D., 50); Parker v. Castle (4 L. D., 84).

Again, it appears that on the day set for final hearing at the local office, to wit, June 2, 1884, Burtt's attorneys appeared for the purpose of protecting his interests, but Bushnell did not appear in person or by attorney; and thereupon the local officers dismissed the contest for default. Afterwards, and on the same day, the testimony taken before Youngblood was rejected by the local officers, for what reason does not appear. And still later, to wit, on June 24, 1884, Bushnell's attorney filed an affidavit admitting that he had neglected to appear on the day set for hearing, but alleging that said neglect was not Bushnell's fault, and at the same time and for said cause he moved the re-opening of the case; and thereupon the case was re-opened, without notice to Burtt's attorney, the said evidence was accepted, and upon it the entry was held for cancellation. This was manifestly and flagrantly wrong, for it deprived the contestee of the defence which he had offered to make.

By reason of the aforesaid irregularities and errors the said decision is reversed, and all the proceedings subsequent to the filing of the affi davit of contest are hereby set aside, with leave to the contestant to proceed anew after proper notice.

PRACTICE-SERVICE OF NOTICE.

CROWSTON v. SEAL.

Service of notice upon a non-resident made by registered letter held good, it appearing that the defendant received such notice more than thirty days before the day set for hearing.

Secretary Lamar to Commissioner Sparks, October 30, 1886.

I have considered the case of Joseph Crowston v. William Seal, as presented by the appeal of the latter from the decision of your office, dated May 3, 1885, dismissing his appeal from the decision of the local land officers denying his motion to dismiss Crowston's contest against Seal's timber culture entry No. 1256 of the NW. of Sec. 9, T. 161 N., R. 53 W., made November 17, 1881, at the Grand Forks land office, Dakota Territory.

The record shows that Crowston initiated a contest against said entry on January 15, 1884. On March 10th both parties appeared in person and by counsel, and upon objection made by counsel for contestee to the sufficiency of the affidavit the local land officers report that "the contestant let the contest drop and a new affidavit was filed March 18, 1884, and summons issued March 27, 1884, fixing the hearing for June 4, 1884, and on March 31st Cox and Merriman admitted service of notice, and on April 19th the attorneys for contestant mailed a copy of the notice in a registered letter to Seal, which he received May 2d, more than thirty days prior to the day of hearing."