and Manitoba railway) company, under the grant by the act of March 3, 1865 (13 Stat., 526), which enlarged the grant of March 3, 1857 (11 Stat., 195).

By the act of March 3, 1871 (16 Stat., 588), said company was authorized on certain conditions to change or alter its branch lines "with the same proportional grant of land to be taken in the same manner along said altered lines as is provided for the present lines by existing laws."

At the date (July 19, 1865,) when the withdrawal of lands for the benefit of the main line became effective, the tracts in question were covered by subsisting homestead entries, which were afterwards, in September, 1867, canceled for abandonment. Said tracts were therefore excepted from said withdrawal for the main line.

The withdrawal for the benefit of the St. Vincent Extension, or branch line, became effective February 12, 1872, the date when notice of withdrawal was received at the local office, at which time it appears the land was vacant and unappropriated.

Iverson made homestead entry for said land June, 1875, and made final proof and final certificate issued thereon May 9, 1881. His proof shows that he established his residence upon the tract in 1875, and has since resided there continuously; that he has a house, sixteen by twenty, with other buildings, and that he had eighty acres under cultivation at the date of making final proof.

When the case came up for action in your office, more than two and a half years after said final proof was made and certificate issued, the entry was held for cancellation, on the ground that by his settlement, which the proof shows was in 1874, and by his subsequent homestead entry he acquired no rights, for the reason that the land being within the withdrawal of 1872, was not subject to settlement or entry. From that action the entryman appeals.

An examination of the records shows that appellant was qualified to make the entry, and that he complied with the homestead law. The railroad company does not dispute this, but contends that the entry should be canceled for the reason given in the decision appealed from. Appellant in this case gave due notice of his intention to make final proof as required by law. Said notice was regularly published, and it described the land and gave the names of the witnesses by whom it was proposed to make the required proof. At the expiration of the period required for publication and posting, and at the time and place specified in the notice, the entryman appeared with his witnesses and made final proof, which as already stated was accepted and final certificate issued. Said notice was an invitation to any and all parties to appear at the time and place designated therein and present their ob jections, if any they had, to the acceptance of the proof and the allow ance of the final entry.

The company did not appear to contest the right of Iverson, and having failed to speak when it should have spoken, "it cannot now be heard to set up a claim, after the settler has made proof and payment and received his certificate from the proper officers." See case of Brady v. Southern Pacific R. R. Co. (5 L. D., 47), decided by this Department February 8th last, and cases therein cited.

For the reason given, and on authority of the case cited, I reverse your office decision, and the entry of Iverson will be allowed to stand.

PRACTICE-CERTIORARI-COPY OF DECISION.

LOUIS W. BUNNELL.

A copy of the decision complained of should accompany an application for certiorari. Acting Secretary Muldrow to Commissioner Sparks, April 14, 1887.

I have before me an application for certiorari in the matter of the homestead entry of Louis W. Bunnell for the SW of Sec. 1, T. 131, R. 56, Fargo, Dakota.

It is alleged that on November 7, 1881, the entryman made commutation proof, that by letter of July 3, 1886, your office held the entry for cancellation, that appeal was duly filed, and "that the Hon. Commissioner has formally refused to allow said appeal, on the ground that the last paragraph added to the specification of errors is a withdrawal of the appeal." A copy of said appeal is furnished and the paragraph referred to reads as follows: "This appeal is taken on the merits, and also to preserve the rights of the said Louis W. Bunnell, and in the meantime a new proof will be made as required by the Commissioner's letter 'C' of September 23, 1885, and his affidavit is hereto attached, showing his status in the case and the fact that he is endeavoring as far as possible to comply with said letter 'C,' and as soon as it was possible for him to do so, and the said claimant Louis W. Bunnell now asks that his new proof about to be made may be accepted and that patent issue to him for said tract."

Applicant does not furnish a copy of said decision of July 3, 1886, or of the decision rejecting said appeal.

It has frequently been held by this Department that the applicant for certiorari should furnish copy of the decision complained of. The Montague Placer Mine (1 B. L. P., 53); Johnson v. Bishop et al. (2 L. D., 67); John Waldock (4 L. D., 31).

I find it impracticable to determine the rights of the applicant herein in the present state of the record. The application is dismissed for the reason that copies of said decisions are not furnished.

PRACTICE-REVIEW-TRANSFEREE.

A. A. JOLINE.

A transferce after entry and before patent, though entitled to be heard on the sufficiency of the final proof, is in no better position with respect thereto than the original entryman.

If the showing made by the transferee would not entitle the entryman to be heard on review, the application must be denied.

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

On October 21, 1886, this Department affirmed your office decision of April 15, 1885, rejecting the commuted homestead proof of Aaron A. Joline for SE. 4, Sec. 6, T. 110 N., R. 63 W., Huron, Dakota. A motion for review was filed, and on the 10th ultimo, in response to letter of December 23, 1886, you forwarded the papers in the case. The original entry was made June 29, 1883, and final proof January 26, 1884.

**

The present motion for review is filed on behalf of one Mrs. Oliver. She was not a party to the record, and it is alleged on affidavit that she is a purchaser in good faith for a valuable consideration after issu ance of final certificate. The affidavits of several persons claiming to be residents in the vicinity of the tract, and stating in detail that Joline complied fully with the law, are furnished. It is further stated that Mrs. Oliver at the time of the purchase did not know there was any defect in the proof of Joline. The date of purchase is not shown.

This application is based on additional testimony as to the residence of the entryman. In the case of John C. Featherspil (4 L. D., 570), it was held: "In determining this case the fact that there is a mortgagee now interested in maintaining the validity of the entry brings no new element into the consideration thereof, inasmuch as he can have no better right than the entryman would have if present, and with whose rights the government deals only, regardless of any sale, assignment or lien made by him to third parties, recognizing, however, the right of said third parties, where their interests have been acquired subsequent to the issue of final certificate, to appear and protect the same by showing proper compliance with the requirements of the law on the part of the entryman." That ruling was affirmed in the case of Cyrus H. Hill (5 L. D., 276), wherein a motion for review on the part of certain mortgagees, based on want of notice of the Commissioner's decision, was denied, as follows: "In the case under consideration there was nothing in the record to show that Hill had mortgaged the tract in question; and it was no part of the duty of the United States officers to search the records in the proper territorial office to ascertain whether any transfer of said land had been made or lien placed thereon by him, in order to send notice of the rejection of the final proof to such transferee or lienor. Notice was sent to the entryman, an appeal was taken by

him, and on said appeal the judgment of your office was affirmed. There is therefore nothing in the first point to require the revocation of my former decision." Following the ruling in said cases, I must hold that the transferee is in no better position to complain of said decision of October 21, then would be the entryman. The allegations now made relate to the sufficiency of the residence. That question was fully considered by your office and by this Department, and passed upon in the light of the evidence then in the case. The allegations now made can not be considered as newly discovered evidence, and I am fully satisfied would not entitle the entryman to a review. This being so, the motion for review filed by his assignee must be denied.

PRACTICE-SERVICE OF NOTICE—JUDGMENT.

DOWNEY v. BRIGGS.

That the original notice of contest, instead of a copy, was left with the entryman, constitutes no valid objection to the service.

If the testimony taken at a hearing shows that an entry should be canceled such action will be ordered, though the evidence may not fully sustain the charge upon which the contest was brought.

Acting Secretary Muldrow to Commissioner Sparks, April 19, 1887.

I have examined the case of Charlie E. Downey v. Jay D. Briggs, as presented by the appeal of the former from the decision of your office, dated May 22, 1885, dismissing his contest against timber culture entry No. 973 of the S. of the NW. and the N. of the SW. of Sec. 11, T. 30 N., R. 9 W., made by said Briggs May 15, 1879, at the Niobrara land office, in the State of Nebraska.

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The record shows that Downey filed his affidavit of contest on March 29, 1884, alleging that the entryman failed to comply with the law as to cultivation and planting of trees, tree seeds, or cuttings, and that he "has otherwise failed to comply with the law." Notice of contest issued March 29, was served upon the defendant personally on April 8, and May 24, 1884, was set for the trial of the case. The register and receiver state that "both parties appeared at that time with their attorneys," and from the testimony submitted they find that the allegations of contestant were not proven and that the charge that the entryman had relinquished said claim was not sustained.

On May 22, 1885, your office affirmed the decision of the local office on the merits of the case, but declined to rule upon the action of the local officers in overruling the motion to dismiss said contest on account of improper service. The only objection raised to the service is, that the original notice was left with the entryman instead of a copy. This objection cannot be sustained and the decision of the local land officers in overruling the same was correct. Their statement, however, that both

parties were at the hearing with their attorneys does not exactly correspond with the record, if they intend to say that the entryman was present at the hearing. The testimony of the contestant tends to show that the land was not properly cultivated, the planting either not done at all, or not properly done; that at the date of the hearing there was not a single living tree upon said claim and that the entryman admitted that he had relinquished and sold said claim to one Benner, who was present at the hearing.

An affidavit of a justice of the peace was offered in evidence, stating that on April 4, 1884, he had taken the acknowledgment of said Briggs that he had relinquished and sold said claim to said Benner.

It does not appear that this affidavit was taken in accordance with the rules of practice for taking depositions, and, hence, cannot be cousidered. It clearly appears, however, that Briggs admitted that he had relinquished said tracts and sold his claim to said Benner, who was present at the hearing and did not deny this assertion. If it was untrue, Benner could easily have taken the stand and denied it. This he did not do. He was present at the hearing, interested in the defense of the claim, and when the damaging statement was made concerning the sale to him, he remained silent and did not deny that he had bought said claim. It has been repeatedly held by this Department that where the testimony taken at a hearing shows that an entry should be canceled, such action will be ordered, although the evidence may not fully sustain the charge upon which the contest was brought. Smith v. Brandes, (2 L. D. 95), Murphy v. Longley et al. (4 L. D. 239), Lee v. Johnson (116 U. S. 48).

It appearing that said Briggs has relinquished and sold his said claim, the entry should be canceled.

The decision of your office dismissing said contest is, therefore, reversed.

TIMBER CULTURE CONTEST-PRE-EMPTOR.

KELLY v. MAYNARD.

The term "homestead laws" in the third section of the timber culture act is used in a generic sense and will embrace the pre-emption law.

The right of contest against a timber culture entry in default extends to an applicant for the land under the pre-emption law.

The case of Buttery v. Sprout overruled.

Acting Secretary Muldrow to Commissioner Sparks, April 21, 1887.

On November 19, 1880, Moses Maynard made timber culture entry of the NW. of Sec. 34, T. 108 N., R. 62 W., Mitchell, Dakota. August 19, 1883, Charles A. Kelly brought contest alleging failure to comply with the law. At the hearing contestee failed to appear, and on the testimony then taken the local officers held that the allegations had