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the land at least by May 31, 1881, and that his residence thereon was continuous until the initiation of Thompson's eontest, March 16, 1882. The defect in the Lange entry consisted in this: that his original affidavit was made May 16, 1881, before the clerk of the court within and for Kingsbury County, Dakota Territory, under Sec. 2294 U. S. Revised Statutes, whereas it should have been made before the register and receiver, as provided in Sec. 2290, inasmuch as Lange had not at that date established his residence upon said tract. But the record of these proceedings shows that Lange filed a supplemental homestead affidavit and application on the first of March, 1882, fifteen days before the contest was initiated. This proceeding cured the defects in his original entry, which was not void, but merely voidable. See St. P. M. & M. Ry. Co. v. Forseth (3 L. D., 446).

It seems clear from this recital of record facts that I did not err in ruling that the irregularity or defect in the matter of Lange's entry had been cured prior to Thompson's application to contest. This proposition seems too clear to require argument.

Neither is there anything in the late case of Martin v. Osborne, decided by me Sept. 28th last (not printed) that conflicts with the view above taken, as suggested by counsel for Thompson. In that case, both the pre-emption declaratory statement of Osborne, and the homestead entry of Martin, were canceled, because neither of them had ever resided on the tract there in controversy. It was further stated, however, that Martin's homestead entry was also "defective," because made under Sec. 2294, when no member of his family was residing upon the land embraced therein; and in that case no application had been made. to cure such defect. The defect not cured in the Martin entry was merely an additional, and not a controlling, reason for its cancellation. It was not said that the Martin entry was roid and could not have been cured, nor was such a proposition entertained in relation to it.

This disposes of all the specifications of error in said motion; and as they or none of them are considered to be of sufficient force and effect to warrant a revocation of the decision herein complained of, said motion is accordingly denied, and the original decision in the case adhered to.

PRE-EMPTION-FILING-HOMESTEAD.
CATHRAN v. DAVIS.

The settlement of a pre-emptor who does not file his declaratory statement is not protected from the subsequent homestead entry of another who complies with the law.

Secretary Lamar to Commissioner Sparks, November 18, 1886.

On April 17, 1881, one William Boyce made homestead entry for the E. and the SW. of NW. and the NW. of NE. Sec. 31, T. 5 S., R. 17 W., Little Rock, Arkansas.

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On September 5, 1883, the relinquishment of said entry was filed and at the same time Wiley B. Davis made homestead entry of the tract. By letter of your office, dated October 18, 1883, Thomas Cathran was allowed to place of record his declaratory statement, alleging settlement December 1, 1878, for the above described E. and SW. of NW. . On September 24th preceding Cathran had filed affidavit of contest against the entry of Davis alleging abandonment. By agreement hearing was set for January 25, 1884.

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The local officers decided that the entry should be canceled. The testimony shows that Cathran settled on the tract, with his family, in 1879, and continued to reside thereon until date of hearing; that his improvements consist of a dwelling, smoke house, crib, stable, garden, orchard and eight acres cleared; that Boyce settled on the tract in dispute about April 17, 1881, built two houses, fenced and broke about one acre, made some other slight improvements, and resided on the land until April 1, 1883, and about the 5th of September following sold his improvements to Davis. On the last mentioned day, as stated, Davis made entry and took up his residence on the land.

The charge of abandonment was not sustained by the proof, and the entry of Davis will not be disturbed by reason of said charge. Your office, by letter of January 28, 1885, after finding the facts substantially as above stated, said: "The testimony shows that at the time of the relinquishment of Boyce and the restoration of the tract to entry, Cathran was actually residing upon the tract as his home, cultivating and improving the same as he had been doing since 1878, and that Davis made his entry with a full knowledge of these facts. Under the rulings of this Department, when a party is owning improvements and is residing upon land covered by a homestead entry at the date of the cancellation thereof, he is considered as being a settler, and no specific act is necessary to constitute a new settlement, and by reason of being upon the land at the instant of cancellation his settlement right is held to be prior to that of a person making a homestead entry after the cancellation has been noted in the local office. (See Peterson v. Kitchen (2 C. L. O., 181); Porter v. Johnson (3 C. L. O., 37); Kasten v. Benz (1 Lester, 418). I am of opinion that Cathran being the prior settler is entitled to enter the tract upon making his final proof." The entry was then held for cancellation.

Without discussing in detail the cases cited in support of the conclusion of your office, it is sufficient to say that they do not present facts similar to those in the case at bar.

Section 2265 of the Revised Statutes provides that a pre-emption claimant on unoffered land shall file his declaratory statement within three months from the time of settlement; "otherwise his claim shall be forfeited, and the tract awarded to the next settler in order of time on the same tract of land who has given such notice and otherwise complied with the conditions of the law."

It is clear that Cathran failed to file his declaratory statement during the time fixed by law. When he did file it Davis was living on the land, clearing it under his homestead entry, and in every particular, as far as the record discloses, complying with law. Under Section 2265 of the Revised Statutes, therefore, the right of Cathran was forfeited in favor of Davis.

Said decision is accordingly reversed and the contest dismissed. I do not find it necessary to further determine the rights of the parties hereto.

PRACTICE-SPECIFICATION OF ERRORS—APPEAL.
STEPHEN SIMON.

The notice of appeal and specification of errors may be filed at different dates, if each is filed within the time prescribed therefor.

The sufficiency of an appeal from the General Land Office is left for the final determination of the Department.

Secretary Lamar to Commissioner Sparks, November 18, 1886.

On the 10th instant you transmitted the application of Stephen Simon for an order directing you to certify to this Department the record of proceedings in your office relative to the rejection of his application for the cancellation of his homestead entry No. 8022, SE. of Sec. 26, T. 120 N., R. 74 W., with the privilege of entering the NW. of Sec. 20, T. 120 N., R. 75 W., at the Huron land district, Dakota Territory. With said application are fowarded copies of your office decisions of Febru ary 16, May 15, and September 21, 1886, showing the action of your of fice in said case.

It appears from the application and the decisions above referred to that your office, on February 16, 1886, directed the register and receiver of said land office to advise said Simon, "whose application for the cancellation of his homestead entry No. 8022, SE. † of Sec. 26, T. 120, R. 74, without prejudice, you transmitted January 29, 1886, that his request will not be further considered, unless he submit in connection therewith an application to enter some specific tract under the same law, as required by departmental ruling of January 8, 1886. See 4 L. D., 310, case of Fremont S. Graham."

On May 15, 1886, your office again advised the local land officers that said Simon's application to have his said entry canceled, with the privi lege of entering the NW. of Sec. 20, T. 120 N., R. 75 W., must be refused, because the application was not made until after the expiration of more than a year and a half after the date of said entry, and for the further reason that the explanation of the manner in which the alleged error in making said entry occurred was not satisfactory.

On August 20, 1886, the local land officers transmitted the appeal of said Simon from said decision of May 15, 1886, refusing to cancel his

said entry without prejudice. On September 21, 1886, your office again advised the local land officers that Simon's appeal "fails to designate clearly and concisely the errors complained of, merely stating that the Honorable Commissioner erred in refusing to grant the petition for the cancellation of said entry without prejudice. The right of appeal is considered waived; (see. Stevens v. Robinson, 4 L. D., 551, re-affirmed August 31, 1886), and the case closed."

The argument filed with said appeal alleges that the affidavit, filed in support of Simon's application, shows that the tract of land embraced in said entry is not the tract that the claimant sought to enter, and that it is not the tract that he supposed that he had entered; that it is shown by affidavits that the tract of land embraced in said entry is not fit for agricultural purposes and cannot be used for that purpose; that the claimaint is a bona fide settler and is seeking for a home on the government lands, to the end that he may have a farm of his own to cultivate, and a home for his family, and that he is acting in the utmost good faith.

Rule of Practice No. 81 (4 L. D., 46) provides that "An appeal may be taken from the decision of the Commissioner of the General Land Office to the Secretary of the Interior upon any question relating to the disposal of the public lands and to private land claims;" and Rule 82 (ibid.) provides that, "When the Commissioner considers an appeal defective he will notify the party of the defect, and if not amended within fifteen days from the date of the service of such notice, the appeal may be dismissed by the Secretary of the Interior and the case closed." Rule 88 provides that, "within the time allowed for giving notice of appeal, the appellant shall also file in the General Land Office a speci fication of errors, which specification shall clearly and concisely designate the errors of which he complains ;" and Rule 90 provides that "failure to file a specification of errors within the time required will be treated as a waiver of the right of appeal, and the case will be closed.”

It is clear that under the rules of practice the notice of appeal and the specification of errors may be filed at different dates, if each is filed within the time prescribed. If the appeal be defective, then the ap pellant is entitled to notice of the defect, and allowed time to perfect the same. If the defect is not supplied, then the appeal may be dismissed-not by your office, but by the Secretary of the Interior." In the case of Pedersen v. Johannessen (4 L. D., 343) this Department decided, on January 25th last, that "Under the rule, as it formerly read, the appeal could be dismissed by the Commissioner; but the rule was changed in the interest of parties appealing, in order that the Depart ment might have an opportunity of passing upon the question whether the Commissioner was correct in his decision as to what constituted a defect in the appeal." In the case of Stevens v. Robinson (ibid., 551), decided June 5, 1886, cited by your office, the specification of errors was not filed until after the expiration of the time allowed by the Rules o

Practice, and counsel for contestee filed a motion for the dismissal of the appeal, on the ground that the specification of errors was not filed in time, and this Department decided, upon the authority of Pedersen . Johannessen, supra, that the appeal was fatally defective and that, even if your office should overlook the requirements of Rule 90 (supra), relative to the filing of a specification of errors, yet the rule is none the less imperative upon this Department, "at least in the presence of a motion to dismiss by the adverse party."

In the case of the Saint Paul, Minneapolis and Manitoba Railway Company . Vannest (5 L. D., 205), decided October 30, 1880, this Department held that "your office may refuse to receive and file an appeal when the same is not presented within the time prescribed by the Rules of Practice, but after the appeal has been filed and no objection made thereto, then the appeal can only be dismissed by this Department." In the present case, it appears that the appeal was filed in time, with a specification of errors; and under the decision in the case of Pedersen 7. Johannessen (supra) the claimant has the right to demand the judg ment of this Department upon the sufficiency of his application, as well as the completeness of his appeal. You will therefore certify the papers in said case to this Department, and in the meantime suspend action until further advised.

PRACTICE-NOTICE OF HEARING.

UNITED STATES v. RICHARDSON.

Though actual notice to the entryman and his transferee appears of record it will not confer jurisdiction in the absence of legal service thereof.

Secretary Lamar to Commissioner Sparks, November 24, 1886.

This record presents the appeal of Walter B. Richardson from the decision of your office, dated February 10, 1885, holding for cancellation his pre-emption cash entry No. 7414 of Lot 10 and E. of Lot 9 and NE. of SW. of Sec. 2, T. 22 N., R. 14 W., made November 27, 1880, at the San Francisco land office, in the State of California.

It is shown that on May 26, 1884, a special agent of your office, referring to your office letter, dated April 28th preceding-copy of which does not appear in the record-reported that on January 16, 1881, he made an examination of the land covered by said entry, and was unable to find any improvements whatever thereon, or any sign of occupation; that he was informed by one Scott Burns, who resides within a mile of the land, that he built a board cabin in a ravine, which was overlooked by said special agent; that he was also informed that said Richardson was a minor when he made his filing, and that he made final proof within six months after he became of age; that "as there is no question but the filing was absolutely void, all subsequent proceed

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