It is noticeable that one of claimant's two final-proof witnesses lives several miles distant from his claim; that the witnesses against him. are persons living nearest to his claim; and that two or more of the persons living near his claim were requested by him to serve as witnesses on his offering final proof, but refused, not considering that he had complied with the law.

Counsel for claimant contend that the decision of your office is unjust and oppressive, in that claimant is "bound down hand and foot by poverty, and the victim of misfortune." But this fact would, under the circumstances, tend rather than otherwise to strengthen the suspicion of bad faith on his part; for if he really intended to make the land his home, no reason appears why one so exceedingly poor-not only penniless, but in debt-should insist on paying two hundred dollars for what he might obtain for nothing, and when he had yet over five years within which to comply with the provisions of the law in order to do so.

In view of the facts herein set forth, clearly indicating an attempt to obtain title to the tract in question without fulfilling in good faith the requirements of the law, I affirm your office decision reversing the action of the local officers, and direct that Boos's entry be canceled.

PRACTICE-NOTICE OF APPEAL AND ARGUMENT.

COOPER v. HARRIS.

It is a valid objection to the notice of appeal and argument that the copies thereof, furnished opposite counsel, are not legible.

Permanent absence from the land immediately following final proof, offered in the presence of an adverse claim, and prior to the issuance of final certificate, indicative of bad faith.

Acting Secretary Muldrow to Commissioner Sparks, March 3, 1887.

I have considered the case of J. C. Cooper v. Edward C. Harris, involving the E. of NW. of Sec. 6, T. 111 N., R. 65 W., Huron, Dakota, on appeal by Harris from your decision of March 31, 1886, holding his filing for cancellation and awarding the land to Cooper.

The material facts in the case are substantially as follows: Harris filed his pre-emption declaratory statement March 9, 1882, for the NW. 1 of said section, alleging settlement February 23, 1882. March 15, 1882, said filing was canceled upon relinquishment as to the W. of the tract, and left intact as to the E. §.

July 24, 1882, Cooper filed pre-emption declaratory statement for said E., with allegation of settlement July 19, 1882.

Harris, on the 27th of November, 1882, offered his pre-emption final proof on the tract in question, and Cooper filed a protest against the allowance of the same, setting forth that Harris had not made settlement and residence in good faith. On said protest a hearing was ordered.

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January 16, 1884, your office rejected said final proof as unsatisfactory in regard to residence, but as his time for making proof had not expired Harris was given an opportunity to present new proof. From that action he appealed, and on the 31st of October, 1884, the Department affirmed your said office decision of January 16, 1884.

In the meantime, Harris went with his family upon the tract, and on November 3, 1884, again offered final proof, and protest was again filed by Cooper, charging (1) that Harris had failed to make any settlement or commence any improvements upon said tract prior to filing his declaratory statement therefor; (2) that said declaratory statement was not made in good faith for his own use and benefit, but for speculative purposes, he being in collusion with certain parties named in the protest as at that time connected with the D. C. Railway Company, in the employ of which Harris was a train dispatcher; (3) that said Harris had failed to reside upon, inhabit and improve said land as required by the pre-emption law; and (4) that he was maintaining a claim to said tract under proof previously offered and then pending before the Secretary of the Interior.

It will be observed that Harris did not await the promulgation of the decision on his appeal to the Department before making his second offer of final proof.

Said decision allowing him to make new final proof was rendered October 31, 1884. His final proof was offered November 3, 1884, after due notice by publication. In connection therewith he made a special affidavit, from which it appears that he first went on to the tract with his family in March, 1884. On the 24th of the same month (November, 1884) Cooper offered final proof under his filing for the same land. Harris filed protest, alleging prior settlement, and that Cooper had not settled upon, inhabited or improved said tract as required by law.

Hearing was ordered, and on the day set (February 3, 1885) a motion was made in behalf of Harris that so much of Cooper's protest as is not limited strictly to a denial of his (Harris's) residence as stated in the new proof, submitted by said Harris November 3, 1884, be dismissed. Upon this motion the register and receiver ruled that any further examination of witnesses be confined to the allegations as to residence. The hearing then proceeded, and several witnesses in behalf of Cooper as protestant were examined. Harris offered no testimony, and declined to place any witnesses upon the stand. He elected to rest the case and stand on his final proof. Cooper was thus deprived of an opportunity to cross-examine Harris or his witnesses on final proof.

The local office ruled in favor of Harris, from which action Cooper appealed to your office, which reversed the action below and held the filing of Harris for cancellation.

From that decision appeal is now before me. Objection is made thereto by counsel for Cooper on the ground that the copy thereof served upon them is not legible. Said copy is here in the case, having

been forwarded with request that proceedings be stayed, and that appellant be required to serve upon them a legible copy of said appeal and argument.

Had said motion been made promptly upon receipt of said copy by counsel for Cooper, I think I should have favorably considered their petition, for upon inspection of the copy complained of I find it impossible to read it as a whole, and it is with difficulty that even the more important portions thereof can be deciphered. However, as by close scrutiny and patient examination enough of it can be read to disclose the fact that it is an appeal from your decision now under consideration, and substantially what the grounds of appeal are, I have concluded, since counsel waited several weeks before presenting their objections, and in order to prevent further delay, to consider and dispose of the case on the record as presented.

The evidence clearly shows that Harris did not establish an actual residence upon the tract prior to March, 1881, when as he himself states he moved on to the tract with his family. At that date, however, Cooper was residing upon the land and was claiming it. He continued his residence on the land and was there at the date of the hearing, February 3, 1885, after both had offered their final proof.

While Harris took his family upon the tract in March, 1881, and they remained there, as far as the record shows, until he offered his proof in November, 1884, they and he then left the land, and he has not since inhabited the tract. He thus terminated what he claimed was residence, although his proofs were objected to and final certificate thereon did not issue. The case is still a pending one on his final proof. Notwithstanding this, it appears he has not only left the land, but has gone to a distant State and is there residing. He was not even in the Territory at the date of the hearing. These facts are not consistent with the theory of good faith under his filing.

Upon a full consideration of all the facts and circumstances, I find nothing in the case which calls for a disturbance of the conclusion arrived at by you, and your decision is affirmed.

RELINQUISHMENT; PRACTICE-APPEAL.

BRADWAY v. Dowd.

On the presentation of the entryman's relinquishment accompanied by his application to enter the land under a different law, the existing entry should be at once canceled and the application allowed subject to any intervening adverse right. The appellant does not waive the right to prosecute his pending appeal by the institution of a second contest on new ground of action.

Acting Secretary Muldrow to Commissioner Sparks, March 3, 1887.

I have considered the appeal of John H. Bradway from the decision of your office, dated April 17, 1885, holding for cancellation his timber

culture entry, made October 1, 1884, at Fargo, Dakota Territory, for the SE. of Sec. 18, T. 140 N., R. 53 W.

It appears that on February 5, 1878, Patrick Dowd made timber culture entry of said tract, and contest was filed against the same on June 12, 1883, by Robert Hayes, alleging failure to plow and plant according to law. Hearing was set for August 2, 1883. At that time the cause was continued until November 14, 1883, on application of the plaintiff. On November 1, 1883, a stipulation was filed, signed by the attorneys of both parties, withdrawing and dismissing said contest. At the same time was presented the relinquishment of said entry by Dowd, and an application by him to enter the tract under the homestead laws. The register and receiver seem not to have acted upon any of these papers at the time of their presentation. But those officers state that "on the adjourned day of this case (November 12) neither party appeared and the case was dismissed"; and on the same day "John H. Bradway filed contest against this claim, and deposited fees and application to enter subject to the final disposition of this case."

On December 21, 1883, the register and receiver transmitted the papers to your office, reporting that in their opinion the transaction between Hayes and Dowd was a corrupt one, and that it was a clear case of "buying off" a contest, and that it was the second time Dowd had bought off a similar contest. They therefore recommended that Hayes be held to have forfeited all further rights under the timber culture laws; that the relinquishment of Dowd be accepted and his timber culture entry be canceled, and the land declared open to entry by the first legal applicant; and that said relinquishment having been presented prior to the contest of Bradway, the latter can not gain any priority by virtue thereof.

There seems to have been no appeal to your office from these findings and recommendations of the register and receiver, but on September 15, 1884, said case was acted upon by your office, and the recommendations of the local officers not approved. It was held that the contest of Hayes ought to have been dismissed, the relinquishment of Dowd received on presentation, his timber culture entry canceled forthwith, his homestead entry allowed, and the action dismissing the Hayes contest was approved; and instructions were issued in accordance to the local officers. From this decision of your office no appeal was taken.

It does not appear from anything in the record on what day the letter containing these instructions was received at the local office. But it is inferred it was received and the instructions, as to cancellation of said timber culture entry of Dowd, carried out, on or shortly before September 30, 1884, because, on October 1, 1884, at 9 A. M., Bradway was allowed to make timber culture entry of said tract, "subject to the rights of Patrick Dowd (see Commissioner, 'C', September 15, 1884)." On the same day, at 3 P. M., Dowd made homestead entry as allowed by the Commissioner's letter. On April 17, 1885, the said timber culture

entry of Bradway was held for cancellation by your office, and it is the appeal of Bradway from that action which is now before me.

When Dowd's relinquishment of his timber culture entry was presented at the Fargo office on November 1, 1884, it was the duty of the local officers to have received it and forthwith have canceled the entry; and the application of Dowd to make homestead entry presented with the relinquishment should have been received and recorded then and there. Mitchell v. Robinson (3 L. D., 546); Tilton v. Price (4 L. D., 123); Cleveland v. Banes (ib., 534).

Ordinarily such entry would be subject to the preferred right of the contestant ; but in this case the withdrawal of his contest by Hayes, presented at the same time, was a waiver of such preferred right; and at the time of the presentation of Dowd's homestead entry on November 1, 1883, the land was open to entry, and there was no claim set up to the same by any one.

Dowd thus clearly having the first right to enter said tract, your office acted properly when on April 17, 1885, it held for cancellation the timber culture entry of Bradway, made October 1, 1881. I therefore affirm your judgment in the premises.

It appears that since the above appeal was taken, and on October 15, 1885, the said Bradway initiated a contest against the said homestead entry of Dowd alleging abandonment and failure to establish residence. A hearing was had before the local officers, who were of opinion that contestant fully substantiated the charges, and recommended the cancellation of said entry. From this action Dowd appealed, and without action thereon you have transmitted the papers in said case to this Department.

The appeal of Bradway, which I have been considering, insisted upon his right to enter the tract in question, as superior to that of Dowd. The contest since instituted involves no question as to the prior right of entry, but, conceding the legal and actual existence of said entry, seeks its cancellation because of failure, on the part of the entryman, to comply with the law as to residence. The contest is thus based upon a separate and distinctive cause of action, arising long subsequent to the first claim of Bradway. This being so, the case does not come within the rule as laid down in the case of Holdridge v. Clark (4 L. D., 382), and other similar cases, which hold that the right of appeal from an adverse decision is waived by the initiation of a second contest. Therefore I have considered and disposed of the appeal of Bradway from the cancellation of his entry and not dismissed it because of his subsequent contest.

However the register and receiver erred in ordering a hearing and taking testimony in said contest, pending the appeal of Bradway, but should have held the contest to await the disposition of the pending

cause.