Under date of July 25, 1883, Neilson filed his affidavit duly corroborated, alleging that he had attended the hearing ordered by your office letter of July 15, 1882, on the 21st of September ensuing; that upon that day Mrs. Shaw appeared and claimed a right of contest against Dunn's said entry; that the local land office decided that he had the preference right of contest, and that his case must be heard first, which was done and testimony taken in the presence of Mrs. Shaw; that he is informed by the register that there is no record of any testimony having been given by him and his witnesses on file in the local land of fice, but that the only record of testimony taken is that of Mrs. Shaw and her witnesses; and he therefore asked to be allowed to substitute the record of his said contest, and that he be allowed a preference right of entry of said tract, as he was then residing upon said land and had valuable improvements thereon, consisting of fifty-five acres of breaking, a two-story house sixteen by twenty feet, with cellar and good well, sixteen feet deep, together with other outbuildings.

On November 8, 1883, your office advised the local land officers that Neilson had the preference right of entry, for the reason that he filed his application to contest said entry prior to that of Mrs. Shaw; that there was no need of another contest, as the testimony submitted by Mrs. Shaw abundantly proved that Dunn's entry was fraudulent, and directed the local land officers to render their decision upon the testimony submitted. On November 27, 1883, the local land officers forwarded the contest papers, and decided that Dunn's entry should be canceled, and the preference right of entry awarded "to the contestant whom these papers show to have a preference right." On April 11, 1884, your office considered the case, and held that the evidence submitted by either contestant was sufficient to warrant the cancellation of said entry, and the same was accordingly canceled by said decision. Your office further decided that Neilson having filed his affidavit of contest first would have the preference right of entry, provided his contest was legal; that it was alleged that Neilson's contest was initiated for speculative purposes, and that he had several other contests pending, which were also speculative. Your office accordingly ordered a hearing to determine which had the legal right of entry. Said hearing was duly held, both parties appearing in person, and were represented by counsel. Upon the evidence submitted the local land officers on January 30, 1885, awarded the right of entry to Neilson. On appeal your office, on February 11, 1885, examined the testimony in the case, found that Mrs. Shaw first settled upon the land; that Neilson's contest was speculative and fraudulent, and that the preference right of entry should be awarded to Mrs. Shaw.

It is strenuously insisted by the appellant that, because he had filed his affidavit of contest first, he should be allowed the preference right of entry under the second section of the act of Congress, approved May 14, 1880 (21 Stat., 140).

While that is true as a general rule, yet it is observed that Neilson's preference right to enter said tract was refused by your office for the reason that his contest was illegal and fraudulent, and hence no bar to the initiation of a legal contest by Mrs. Shaw. It appears that Mrs. Shaw was allowed to proceed with her contest under said decision; that she furnished testimony sufficient to warrant the cancellation of Dunn's entry; that she first settled upon said land and made improvements thereon. The testimony also shows that Neilson stated that he had from four to twelve contests pending at the same time; that he was offering the withdrawal of said contests for sale to different parties; that he tried to negotiate with the brother of Mrs. Shaw for the sale of his claim to said tract; that after the refusal of Mrs. Shaw's brother to purchase his withdrawal of said contest, Neilson moved on the land with his family and began making improvements in the summer of 1883. Mr. Neilson admits that he had three contests against different entries pending at the same time, including the one in the present case. On December 22, 1882 (9 C. L. O., 186), your office instructed the local land officers at Grand Forks, in said Territory, that "in future you will allow but one contest against a homestead entry, and one contest against a timber entry to the same party at the same time. Fraudulent entries and contests for speculative purposes cannot and will not be allowed by this Department."

On April 9, 1883, your office, in the case of De Laney v. Bowers (1 L. D., 189), held that where parties initiate contests, withdraw them before the day of trial, then renew contests, such contests cannot be regarded as made in good faith.

In the case of O'Kane v. Woody (2 L. D., 64) this Department quoted that portion of said instructions with approval. See also instructions to Huron Office, September 22, 1884 (3 L. D., 120).

It is true that in the case of Johnson v. Bishop (2 L. D., 67), it was held that it may fairly be presumed that all contests are originated for the immediate personal benefit of the contestant, and that the nature of the motive prompting the initiation of a contest would not on the application of a stranger form a proper basis for investigation. But this ruling has been modified in several cases, so as to allow a contest to be attacked for fraud where it was initiated in collusion with the entryman, and where it was commenced, not for the purpose of canceling the entry, but rather to keep the entry of record, and enable the contestant to speculate upon his right of contest. Brown v. Brown, and Moses v. Brown (2 L. D., 259); Thorpe et al. v. McWilliams (3 L. D., 341); Melcher v. Clark (4 L. D., 504).

In Austin v. Norin (4 L. D., 461), the Department held that although the successful contestant may not have intended to enter the land at the time of filing the contest, yet that will not bar him of the privi lege of exercising that right at any time within thirty days from date of notice of cancellation. But it was not intended to rule that a con

testant, who did not initiate his contest for the purpose of procuring the cancellation of an entry, but rather for the purpose of selling his right of contest to the highest bidder, could secure the preference right of entry by virtue of his fraudulent contest. The underlying principle in the laws for the disposition of the public domain is that every appli cant and every contestant in his every act, in endeavoring to secure a tract of public land shall show good faith. Such was the express ruling of the Department in the case of Dayton v. Hause et al. (4 L. D., 263). It appears that Mrs. Shaw first settled upon the tract of land in controversy; that Neilson subsequently settled upon the land and made improvements before the cancellation of Daun's entry. While neither could acquire any right by virtue of such settlement as against the United States, or the record entryman, yet as between the settlers priority of settlement may be properly considered. Geer v. Farrington (4 L.D., 410).

A careful consideration of the whole record discloses no good reason why said decision should be disturbed, and it is accordingly affirmed. Your attention is called to the fact that on June 26th last Neilson was allowed to make homestead entry No. 11,556 of said tract. It is not understood by what authority that was done, when there was an appeal pending from your office decision awarding the land to Mrs. Shaw. Neilson's said entry should be canceled.

FINAL PROOF-REQUIREMENTS.

GEORGE ROSE.

Final proof must be taken on the day named in the notice, and the testimony of the claimant and his witnesses taken before the same officer.

Acting Secretary Muldrow to Commissioner Sparks, January 14, 1887. On the 26th of August, 1885, you suspended the pre-emption cash entry of George Rose, covering the NE. of Sec. 8, T. 130, R. 63, Fargo, Dakota Territory, for the reason that the proof was not made in compliance with the published notice of intention to make proof. The published notice of intention announces that "the testimony of witnesses will be taken before Ed. A. Smith, notary public, at Ellendale, Dakota Territory, and the testimony of claimant will be taken before William H. Becker, judge of the probate court at Ellendale, Dakota, on the 28th day of November, 1883."

The testimony was taken on the 24th day of November. As your letter to the local officers very truly says: "This action avoided the very thing sought to be accomplished by the publication of such notice, and deprived interested parties of the opportunity accorded them by law to cross-examine the witnesses, or present counter testimony at the time when proof was offered."

I affirm your decision rejecting said proof. You are directed to notify the local officers to inform the applicant that he will be required to file with the register for publication another notice of intention to make final proof, and then to make proof on the day set forth in the notice-the testimony of the claimant and his witnesses all to be taken before the same officer, in accordance with the practice as laid down in the circular of March 30, 1886 (4 L. D., 473).

PRACTICE-TESTIMONY TAKEN BEFORE A COMMISSIONER.

MCKINNEY v. DOOLEY.

Testimony when taken before a commissioner should be sealed up and transmitted to the local office by mail or express.

Testimony thus taken, but delivered to the local office through an attorney for one of the parties, who had the same in his possession for some time, will not be considered.

Acting Secretary Muldrow to Commissioner Sparks, January 14, 1887.

James H. Dooley, on the 9th of July, 1880, made homestead entry of the N. of the NW. of Sec. 22, T. 138, R. 82, Bismarck, Dakota Territory. Contest was initiated by William H. McKinney March 27, 1884, alleging failure to comply with the law as to residence. The register appointed E. J. Steele (a notary public) a commissioner to take the testimony. On October 3, 1884, the register and receiver rendered decis ion adverse to claimant. Prior to this date, however,-to wit, August 4, 1884-counsel for Dooley moved to dismiss the contest, on the ground "That the testimony taken in said cause has been in possession of the attorney for the contestant herein, and that said testimony was delivered to said land office by the attorney for the contestant; and the said contestee objects to the consideration of said testimony, or any part thereof, in said contest."

Decision being rendered notwithstanding the above objection, claimant appealed to your office, contending that the local officers erred in considering the testimony, "as the fact of said testimony being in the possession of T. J. Mitchell, the said attorney for the contestant, was within the knowledge of said register." M. J. Edgerly, counsel for claimant, makes affidavit " that said testimony remained in the possession of the said Mitchell until delivered by him to John A. Rea, the register of said land office, as your affiant is informed by the said T. J. Mitchell and the said John A. Rea."

Your office decision of July 20, 1885, referring to this statement, says: "Nothing is offered in support of this allegation; and I must conclude, though you are silent in regard to the matter, that the case was properly conducted."

The fact referred to was one which had been persistently urged upon the attention of the register as a reason why he should dismiss the con

test: upon that point the case was appealed; and when Mr. Edgerly's affidavit that the register had informed him of that fact, which affidavit was sworn to before said register, was transmitted to you by the reg ister, it is safe to assume, in the absence of denial by the register, that the register did so inform him, and that the information was correct. Furthermore: when the attorney for contestant, whose case hinges entirely upon this one point, fails to deny that he informed the counsel for claimant that he had the testimony in his possession for an indefinite time, and that he delivered it to the register, it increases the presumption to an absolute certainty. Under these circumstances, it seems to me hardly correct to hold that "nothing is offered in support of this allegation," and hence to "conclude that the case was properly conducted."

Rule 35 of Practice, paragraph 3 (substantially the same as Rule 30 of those in effect at the date of the hearing in this case), provides that "testimony so taken" (i. e., before any officer other than the register and receiver) "must be certified to, sealed up, and transmitted by mail or express to the register and receiver, and the receipt thereof at the local office noted on the papers."

It is of obvious importance in securing the ends of justice that this rule be strictly observed; and there having clearly been a gross violation thereof in the case at bar, and objection having been promptly made, the testimony ought not to have been considered.

I therefore modify said office decision, and direct that a new hearing be had, after due notice to the parties in interest.

PRACTICE-TIMBER CULTURE CONTEST.

ANDERSON v. HAMILTON.

Non-compliance with the law being shown, the burden of proof is thereafter upon the entryman to show his good faith and satisfactory reasons for his failure to meet the requirements of the law.

Acting Secretary Muldrow to Commissioner Sparks, January 13, 1887.

October 23, 1880, David E. Hamilton made timber culture entry No. 1380 of the SW. of Sec. 10, T. 109 N., R. 38 W., 5th P. M., Tracy, Minnesota, and on the 19th of March, 1884, Thomas A. Anderson initiated contest against said entry, the charge being that Hamilton had"failed during the third year after date of entry to plant in trees, tree seeds, or cuttings, five acres of said tract, and failed to cultivate to crop or otherwise a second five acres of said claim during said third year. There are not to exceed one hundred growing trees on said claim at the present time, and no portion of said claim prepared for the planting of timber during the fourth year after entry."