Unless specially called for, the certificate above referred to will not be required of any attorney or agent heretofore recognized and now in good standing before the Department.

4. An applicant for admission to practice under the above regulations must address a letter to the Secretary of the Interior, inclosing the certificate and oath above required, in which letter his full name and postoffice address must be given. He must state whether or not he has ever been recognized as an attorney or agent before this Department or any Bureau thereof, and if so, whether he has ever been suspended or disbarred from practice. He must also state whether he holds any office under the Government of the United States.

No person who has been an officer, clerk, or employé of this Depart ment within two years prior to his application to appear in any case pending herein shall be recognized or permitted to appear as an attorney or agent in any such case as shall have been pending in the Department at or before the date he left the service: Provided, This rule shall not apply to officers, clerks, or employés of the Patent Office, nor to cases therein.

Whenever an attorney or agent is charged with improper practices in connection with any matter before a Bureau of this Department, the head of such Bureau shall investigate the charge, giving the attorney or agent due notice, together with a statement of the charge against him, and allow him an opportunity to be heard in the premises. When the investigation shall have been concluded all the papers shall be forwarded to the Department, with a statement of the facts and such recommendation as to disbarment from practice as the head of the Bureau may deem proper, for the consideration of the Secretary of the Interior. During the investigation the attorney or agent will be recognized as such, unless for special reasons the Secretary shall order his suspension from practice.

If any attorney or agent in good standing before the Department shall knowingly employ as sub-agent or correspondent a person who has been prohibited from practice before the Department, it will be sufficient reason for the disbarment of the former from practice.

Upon the disbarment of an attorney or agent notice thereof will be given to the heads of Bureaus of this Department, and to the other Executive Departments; and thereafter, until otherwise ordered, such disbarred person will not be recognized as attorney or agent in any claim. or other matter before this Department or any Bureau thereof.

L. Q. C. LAMAR,

Secretary.

ATTORNEYS-CIRCULAR OF JULY 31, 1885.

F. M. HEATON.

The requirement of the circular of July 31, 1885, with respect to the appearance of attorneys for alleged fraudulent entrymen is not applicable to attorneys appearing in the General Land Office or this Department.

The case of Wm. E. McIntyre cited and distinguished.

Acting Secretary Muldrow to Commissioner Sparks, January 6, 1887.

of SE.

On October 4, 1886, F. M. Heaton filed in this Department a letter, inclosing your office letter addressed to him, dated August 23d last, in which he is informed that "your appearance, dated December 15, 1885, in the case of Bertinel V. Pierce, N. of SW. 1, NW. and SW. of S. 1, Sec. 23, T. 11, R. 71, not having been made in accordance with the circular of July 31, 1885, you are advised that you can not be recognized as an attorney in the case (Wm. E. McIntyre, 4 L. D., 527).” Mr. Heaton alleges that "said circular was approved by Hon. G. A. Jenks, then acting Secretary, with the distinct understanding that the rules embraced therein applied only to the local land officers, and the fact is so stated in Mr. Jenks' hand writing on a copy of the circular now on file in Division "P," in the General Land Office."

On October 13, 1886, the communication of Mr. Heaton was transmitted to your office, with a request that you return the same with your report upon the allegations therein contained. On November 24th last, your office returned said letter of Mr. Heaton and the circular, with the indorsement of Mr. Jenks above referred to, together with a report containing the views of your office upon the allegations contained in Mr. Heaton's said letter.

That part of the circular of July 31, 1885, (4 L. D., 503), referred to by Mr. Heaton, is as follows: "Attorneys appearing for alleged fraud. ulent entrymen will be required to file written authority of the claimant for such purpose." Said circular was approved by the Hon. G. A. Jenks, then acting Secretary, and upon the copy of the same, forwarded with said report, is the indorsement by Mr. Jenks that "this rule as to attorneys does not apply to attorneys in the Department, but in the local office." It therefore appears by the construction of the officer approving said circular that it was never intended to apply to the attor neys practicing before your office or this Department. The action of your office, holding that said circular should apply to "attorneys appearing for alleged fraudulent entrymen" practicing before your office, is based upon the case of W. E. McIntyre (4 L. D., 527), decided by me on May 18th last, and your office suggests that, in view of all the circumstances, said indorsement of the Assistant Secretary should not be considered official, and that the necessity of extending said rule to attorneys practicing before your office "becomes more apparent as experience broadens," and there are cited as evidence of the correctness

of said conclusion certain transactions in the practice of attorneys before your office.

Rule of Practice No. 101 (4 L. D., 48), provides that "no person hereafter appearing as a party or attorney in any case shall be entitled to a notice of the proceedings who does not at the time of his appearance file in the office in which the case is pending a statement in writing, giving his name and post-office address, and the name of the party whom he represents." Rule 107 (ibid.) also provides that all attorneys, practicing before the General Land Office and Department of the Interior, must first file the oath of office prescribed by section 3478 United States Revised Statutes, and Rule 108 (4 L. D., 336), as amended, provides that "In the examination of any case, whether contested or ex-parte, the attorneys employed in said case, when in good standing in the Department, for the preparation of arguments, will be allowed full opportunity to consult the records of the case, the abstracts, field notes, and tract books and the correspondence of the General Land Office, or of the Department, not deemed privileged and confidential."

The case of McIntyre (supra) held that the Department had the right under the act of Congress approved July 4, 1884 (23 Stat., 101), to prescribe rules and regulations governing the recognition of attorneys representing claimants, and the requirement that attorneys appearing for alledged fraudulent entrymen must produce written evidence of their authority to act for the claimant. Said decision also held that said circular was not retroactive and could not apply to attorneys who had entered an appearance prior to its date. In said case it appeared that counsel for the purchaser had entered his appearance in the local office prior to the date of said circular, and it by no means follows from said decision that said circular does, or was intended to apply to attorneys practicing before your office.

It must be conceded that the general rule in the courts is that the appearance of an attorney for a party is always deemed sufficient for the opposite party and for the court, unless there are circumstances indicating fraud or collusion.

In the case of Osborn v. United States Bank (9 Wheaton, 740), the supreme court of the United States, speaking through Chief Justice Marshall, said: "Natural persons may appear in court, either by themselves or their attorney. But no man has a right to appear as the attorney of another without the authority of that other. In ordinary. cases the authority must be produced, because there is in the nature of things no prima facie evidence that one man is in fact the attorney of another. The case of an attorney at law, an attorney for the purpose of representing another in court, and prosecuting or defending a suit in his name, is somewhat different. The power must, indeed, exist, but its production has not been considered indispensable. Certain gentlemen, first licensed by the government, are admitted by order of court. to stand at the bar with a general capacity to represent all the suitors

in the court. The appearance of any one of these gentlemen in a cause has always been received as evidence of his authority, and no additional evidence, so far as we are informed, has ever been required. This practice we believe has existed from the first establishment of our courts and no departure from it has been made in those of any State or of the Union."

In the case of Hill v. Mendenhall (21 Wall., 454), the same court, Chief Justice Waite delivering the opinion of the court, said: "When an attorney of a court of record appears in an action for one of the parties, his authority in the absence of any proof to the contrary will be presumed." To the same effect has been the ruling in the State courts (see cases cited in U. S. Digest, Vol. 2, p. 340, Sec. 237).

On February 1, 1886,* this Department issued regulations prescribing the qualifications required of attorneys or agents who desire to represent claimants before the Department, or one of its Bureaus. Said regulations provide the manner of admission of attorneys at law and persons not attorneys at law, requiring them to furnish satisfactory evidence that they are of good moral character and in good repute, and possess the necessary qualifications to enable them to render claimants valuable service and otherwise competent to advise and assist them in the presentation of their claims. Said regulations also provide that "unless specially called for, the certificate above referred to will not be required of any attorney or agent heretofore recognized and now in good stand. ing before the Department."

It is not shown or asserted that Mr. Heaton was not recognized by your office and is not now "in good standing before this Department." If it be true, as stated in your report, that in certain cases attorneys have claimed to represent entrymen, "where there is strong evidence. to the contrary," then it would seem eminently right that proper proceedings should be instituted to establish the correctness of said charge, to the end that proper action may be had thereon.

The regulations above referred to provide that "whenever any attor ney or agent is charged with improper practices in connection with any matter before a bureau of this Department, the head of such bureau shall investigate the charge, giving the attorney or agent due notice, together with a statement of the charge against him and allow him an opportunity to be heard in the premises During the in

vestigation, the attorney or agent will be recognized as such, unless for special reasons the Secretary should order his suspension from prac tice." Aside from the presumption of honesty that attaches until the contrary is shown, it would seem that a strict enforcement of the regulation quoted would be sufficient to deter dishonest attorneys and agents from appearing in the Department for entrymen or claimants without authority.

*For revised issue of this circular see page 337 of this volume.

Again, it appears that said circular was addressed to the local land officers and special agents. It was not intended to modify the long established practice before your office and this Department, as indicated by the rules above cited. If, however, in any particular case your office has reason to believe that an attorney or agent appears without any authority from the party whom he claims to represent, such attorney or agent may be required to show his authority, and in case of failure so to do, if the evidence warrants it, proceedings may be commenced in accordance with the rules of practice and the regulations of the Depart ment. The attorney or agent entering his appearance in a case should state for whom he appears, and the relation of his client to the case, but there does not appear to be any good reason why all attorneys and agents, "in good standing," practicing before your office and this Department should be required to file the written authority of their clients, before being recognized, in the absence of circumstances impeaching their good faith.

It appearing that Mr. Heaton stated the name of the party for whom he appears, and the land involved, he should be recognized by your office as the attorney of Mr. Pierce, unless there is some good reason to the contrary not apparent in the record.

RAILROAD GRANT-EXPENSE OF SURVEY-INDIAN TITLE.

WHITNEY v. NORTHERN PACIFIC R. R. Co.

The right of the company to land that was in a condition to pass at the date of definite location is not impaired by the failure of the company to pay for the survey.

The effect of such failure is only to raise a question between the government and the company as to the delivery of title.

The sixteenth article of the treaty of April 29, 1858, with the Sioux, did not reserve the lands therein described as lying "north of the North Platte river and east of the Big Horn mountains," but provided that such land should be regarded as unceded Indian territory.

Under the second section of the graut to this company, its rights within such territory took effect on the extinguishment of the Indian title.

Acting Secretary Muldrow to Commissioner Sparks, January 6, 1887.

With your letter of March 19, 1886, you transmit for my consideration the application of Luther J. Whitney for re-instatement of his preemption entry of the E. of NE. of Sec. 33, T. 8 N., R. 47 E., Miles City district, Montana Territory.

This tract is within the forty mile limits of the line of the Northern Pacific Railroad, and also within the limits of the withdrawal ordered April 21, 1872, upon a map of general route, filed February 21, 1872, and within the limits of the map of definite location filed June 25, 1881. The tract was listed by the company June 23, 1883.