there does not appear to have been any such great sacrifice of the property as would put an ordinarily prudent man on inquiry, especially when the settler's wife had gone back to Illinois, and he claimed to want to sell so he could go too.

But there is another matter of importance in this case that your office seems to have ignored. This contract was not illegal, nor against public policy or good morals. It was a legitimate transaction, and mouey was paid upon the contract. Ordinarily a demurrer will lie to a bill in equity, where rescission is asked, or it is sought to have a contract set aside, if it appears on the face of the bill that part payment has been made, unless a tender of the money is also made.

Judge Story, in discussing this subject, says (par. 228, Equity Juris prudence):

And so, if a purchase is made in good faith without any knowledge of.the incapac ity, and no advantage had been taken of the party, courts of equity will not interfere to set aside a contract, if injustice will thereby be done to the other side and the parties cannot be placed in statu quo or in the state in which they were before the purchase.

There is no tender of the money paid in this case.

Having fully considered the entire record and the testimony, I cannot concur in your findings of fact, or your rulings as to the law governing the case. Your decision is therefore reversed, and the application dismissed. (This decision will not bar a new application if a court of equity should, upon a hearing, decree a rescission and restore Volwieler to possession of his claim).

CERTIORARI-SPECIAL CASE-APPEAL.

TAYLOR v. ROGERS.

The act of the Commissioner in making a case special, or in refusing so to do, is within his discretion, and will not be disturbed in the absence of a clear showing that such discretion has been abused, and that such abuse has resulted in injury to a party in interest.

An appeal in which it is alleged that certain important papers are missing from the record should not be dismissed on motion without allowing the appellant an opportunity to file argument in response to said motion, and take action with respect to the missing papers.

Acting Secretary Chandler to the Commissioner of the General Land Office, June 27, 1891.

I have considered the application by Rogers for certiorari proceed. ings in the case of Samuel F. Taylor v. Harvey L. Rogers, involving desert land entry No. 241 for the E of the SE, the SW of the SE., and lot 4, Sec. 25, T. 2 N., R. 37 E., Blackfoot, Idaho.

From the records transmitted by you, the facts in the case appear to be, briefly stated, as follows: Rogers made desert land entry for the tracts in question on March 13, 1890, and on March 15, following, filed potice of his intention to make final proof and cash entry.

On April 28, 1890, final proof was made, and on May 6, following, upon payment, cash certificate issued to him.

May 28, 1890, an affidavit of contest was filed in the local land office by Samuel F. Taylor, alleging

That said tract was not at date of entry, nor at date of final proof, subject to entry under the desert act, in that a portion of said land had been for several years prior thereto appropriated and occupied by the Bingham County Agricultural Association, they having improvements thereon to the extent of $5,000 a portion of said land having also been reclaimed by said association prior to date of said entry.

A hearing was had on this affidavit on August 12, 1890. On September 4, 1890, after considering the evidence, the register and receiver found that the land had been reclaimed before the entry of Rogers; they accordingly recommended the same for cancellation.

On September 9, following, Rogers filed his notice of appeal, which, omitting the notice and formal parts, is as follows: "That said decision is contrary to the law and the evidence in the said case." No proof appears in the record that a copy of the notice and alleged assignment of errors was served upon the appellee.

On March 31, 1891, upon presentation of certain facts, by order of your office, said case was made special.

You state that on April 1, 1891, Taylor appeared specially by counsel and filed, with proof of service upon counsel for Rogers, a motion to dismiss said appeal for the following reasons:

(1) Said appeal contains no specifications of error as required by the Rules of Practice.

(2) There is no evidence of record that any appeal was served on Taylor the appellee.

A notice of the pendency of the motion was served on counsel for Rogers on March 31, 1891; and on April 3, following a letter was received at your office from him, of which the following is a copy:

WASHINGTON, D. C., April 3rd, 1891. SIR: In the matter of the contest of Samuel F. Taylor v. Harvey L. Rogers now pending before you on appeal from the decision of the local office at Blackfoot, Idaho, involving Blackfoot, Idaho, D. L. Entry No. 1075, F. C. 241, E. of SE and SW of SE and Lot 4, Sec. 25, Twp. 2 north, range 37 east, and in which case I represent Harvey L. Rogers I have been served with a notice of motion to dismiss the appeal. In examining the record of the case preparatory to replying to this motion I find certain important papers in the case missing.

I write this simply to request that you will not take immediate or hasty action on the motion to dismiss the appeal until I have an opportunity to duplicate or account for the missing papers in order that I may properly reply to the motion.

Very respectfully,

R. B. PAIRO.

On April 10, following, considering said motion, your office held that the want of proof of the notice of appeal might be supplied, provided it was made to appear that the notice had been served; but held that the appeal must be dismissed because it contains no specifications of error as required by the Rules of Practice.

Rogers was notified that no appeal from your said ruling would be

allowed, because of his failure to perfect an appeal to your office from the findings of the register and receiver. Thereupon he petitioned for a writ of certiorari to compel the transmission of the record to this Department for final disposition.

It is well settled by the rulings of the Department that the writ of certiorari will not be granted to control the Commissioner's discretion. ary authority, unless there has been an apparent abuse thereof. Wit ter v. Ostroski, 11 L. D., 260.

The acts of the Commissioner in making a case special, which is pend ing before him, or in refusing to do so, are matters clearly within his discretion and consequently will not be disturbed by this Department in the absence of a clear showing that such discretion has been abused and that the abuse thereof has resulted in injury to a party in interest. Frank Quinn, 9 L. D., 530. Besides, it was held in the case of Lambert v. Fairchild, 5 L. D., 675, that "when a case is ready for consideration under the rules of practice, it may be advanced on the docket without notice to either party."

In this case, Rogers' appeal was taken on September 9, 1890, briefs were filed soon after, and the case was in every way ready for consid eration on March 31, 1891, when it was made special. Without deciding whether the appeal was sufficient in form to constitute a compliance with the rules of practice, I am of the opinion that your office committed an error in dismissing the appeal over the objection of the attorney of Rogers and in the face of the showing made by him in his letter of April 3, 1891. He should have been allowed a sufficient length of time in which to have prepared his objections to the dismissal of the appeal on the motion made by contestant. On April 3, attorney for contestee requested that your office should not take hasty action on the motion to dismiss the appeal, and suggested that "in examining the record of the case preparatory to replying to this motion I find certain important papers in the case missing." On the seventh day after receiving this information, and although no brief had been filed for contestee, your office dismissed the appeal, and gave notice that no appeal to this Department would be allowed.

It appears that applicant is entitled to the relief asked for in his pe tition. It was manifestly a great injustice to contestee to have dismissed his appeal without allowing him time in which to discover the missing papers alleged to have been lost from the record and to file his argument against the motion to dismiss. It seems that his communi. cation of April 3, asking time, was not answered, and the first informa tion he received was that the appeal had been dismissed.

I think the facts presented in the petition warrant the exercise of that just supervision which the law vests in this Department over all proceedings instituted to acquire portions of the public lands. You will therefore, on receipt hereof, certify up to this Department the papers in the matter referred to, for investigation and such action as may be deemed appropriate.

ATC

INDEX.