HOMESTEAD DECLARATORY STATEMENT-APPLICATION.

MARIA C. ARTER.

By the filing and abandonment of a soldier's homestead declaratory statement, the right to make homestead entry is exhausted; and there is no distinction in this particular between a filing made by the soldier himself, and one by his widow, or the guardian of his minor children.

A legal application to enter, while pending, withdraws the land embraced therein from any other disposition until final action thereon.

First Assistant Secretary Muldrow to Commissioner Stockslager, August 4, 1888.

I have considered the appeal of Maria C. Arter from the decision of your office of March 23, 1887, affirming the action of the local officers in rejecting her application to make homestead entry on the SW., Sec. 35, T. 32 N., R. 17 W., Valentine district, Nebraska.

The appellant made such application under the general homestead law March 1, 1887, and it was rejected by your office on the ground, first, that applicant had exhausted her homestead right by filing October 12, 1883, as widow of a deceased United States soldier, a soldier's declaratory statement, No. 48, for another tract of land—to wit, the E. NE. †, Sec. 34, T. 32, R. 17, in said land district. This filing was made under Sections 2304 and 2307 of the Revised Statutes, and was subsequently abandoned, no further proceedings being had thereunder.

By the filing and abandonment of a soldier's homestead declaratory statement, the right to make homestead entry is exhausted. Stephens v. Ray (5 L. D., 133); Circular of December 15, 1882, Sub-div. 4, 1 L. D., 648; General Circular of March 1, 1884, p. 22. There is no distinction in this particular between a filing of such declaratory statement by the soldier himself and such filing by his widow or the guardian of his minor children.

The application of the appellant was also rejected by your office on the further ground that "the application of one A. A. Brubaker, to enter the same land, was pending on appeal" to this Department. "A legal application to enter, while pending, withdraws the land embraced therein from any other disposition until final action thereon." Pfaff v. Williams et al (4 L. D., 455); Davis v. Crans et al (3 L. D., 218. The decision of your office is affirmed on both of said grounds.

PRACTICE-EVIDENCE-REHEARING.

SUTTON ET AL. v. ABRAMS.

The statements of a party to his attorney are not admissible in evidence as against the interest of such party, and an offer to prove such statements would therefore not furnish any ground for a new trial.

A new trial will not be granted on the ground of newly discovered evidence, where such evidence tends simply to discredit or impeach a witness; nor unless it is of that character as to necessarily cause the trial court to arrive at a different conclusion.

In motions for rehearing, resting on alleged newly discovered evidence, it should be shown that such testimony could not have been discovered by due diligence, and the facts relied upon to show such diligence should be specifically set forth. First Assistant Secretary Muldrow to Commissioner Stockslager, August 2, 1888.

On December 1, 1887, the attorney for David II. Sutton and Henry A Hockett, filed a motion asking for a review of departmental decision of October 26, 1887 and for a rehearing in the case of said parties against David A. Abrams, invol ving the E. NE. 1, and the NE. SE. of Sec. 8, and the NW. SW. of Sec. 9, T. 5 S., R. 84 W., Glenwood Springs, Colorado land district.

Said departmental decision awarded the land in controversy to Abrams and held for cancellation the pre-emption filing of Hockett as to the NE. NE. of said section 8, and also the pre-emption filing of Sutton as to the SE. NE. 4 and the NE. SE. † of said section 8, and the NW. SW. of said section 9.

The motion now under consideration was made "on the ground of newly discovered evidence, viz: the testimony of Charles A. Hinckley, Robert Matthews and William F. Wood, which shows that the settlement of contestee was not made in good faith, but for speculative purposes and that the filing by him was therefore void" and the affidavits of the witnesses named are filed with said motion. The motion is verified by the affidavit of R. A. Burton, attorney for the applicants wherein he says, "the facts set forth as a basis for rehearing, re-examination and review were not known by him, nor by the contestants as he is informed and believes, at the time of the hearing had before the local office."

On December 6, 1887, the attorney for Abrams filed an argument against granting the motion for a rehearing, urging that Mr. Burton not being engaged in the case at the time of the trial before the local officers, could have no personal knowledge of the efforts to obtain this testimony at that time and was therefore not the proper person to make the affidavit required in such cases; that it is not alleged, that due diligence was used to discover the evidence now desired to be introduced, that this evidence is not in fact newly discovered and that Hinckley, whose affidavit is one of those filed in support of the motion, was Abrams' attorney at the time the statements he swears to in his affidavit are alleged to have been made, and as such attorney conducted the trial of this case before the local officers.

On January 7, 1888, the attorneys for Abrams filed affidavits contradicting the statements made in the affidavits in support of said motion. On January 14, 1888, there was filed in support of said motion the affidavit of J. A. Ewing, setting up that he was one of Sutton's attorneys, that he had from time to time during the entire contest as to this land consulted with said Sutton and knew at all times the facts known by Sutton; that he knows that the facts set forth in the affidavits of

Hinckley, Matthews and Wood were not known to Sutton, or the affiant, and that they could not have been discovered by due, ordinary or reasonable diligence, at the time of the hearing before the local office, and that he makes this affidavit as the attorney of said Sutton because of his (Sutton's) death. On March 3, 1888, the attorneys for Sutton filed the affidavit of Wm. E. Goodal in support of their motion for a rehearing. The evidence upon which the motion is based is to the effect that Abrams, in his life time and about the time he made his filing, had told these parties that one Dr. Eyer, of Leadville, Colorado, was interested with him in the claim, that said Eyer was furnishing the money to im. prove the claim and was to have one-half of it after patent was is sued. It also tends to show that Abrams in paying for work and improvements on the place, frequently gave orders on said Eyer who paid the same.

Goodal, one of the witnesses whose affidavit was filed states that, he did certain work for Abrams and received in payment therefor an order on Dr. Eyer of Leadville, who paid the amount thereof. Upon his crossexamination in the trial of this case Abrams was asked if he did not pay Goodal for work by an order on Eyer, and answered that he did, and admitted the same as to other parties, so that these statements can not be called newly discovered evidence since the fact was admitted on the hearing.

The other newly discovered evidence consists of the testimony of Hinckley, Matthews and Wood, to the effect that Abrams had stated to them that Eyer was to have an interest in the land covered by his pre-emption claim. It appears that Hinckley at the time of the statements he refers to, was acting as attorney for Abrams and that the statements, if made, were made to him or in his presence in the capacity of such attorney. This testimony would not be admissible on a new trial, and therefore, his affidavit does not furnish grounds for a new trial.

From an examination of the testimony taken at the hearing in this case it will be seen that the plaintiffs endeavored to show that there was an agreement between Abrams, the defendant, and Eyer, by which Eyer was to furnish money for the improvements on Abrams' claim, and in consideration thereof was to have one-half the laud embraced in this claim. On cross-examination Abrams was asked if there was not such an agreement between him and Eyer, and positively denied it. He explained the business relations existing between him and Eyer by saying, that they had an agreement by which Eyer furnished a certain number of cattle which he, Abrams, cared for and that they shared in the increase of those cattle, and that Eyer still owed him something as his part of the profits of that undertaking. The testimony now proposed to be submitted would tend to contradict the testimony of Abrams, who has since died, but would not necessarily establish the fact that Abrams' filing was illegal, nor would it necessarily change the findings on this question.

It is a well established rule that a new trial will not be granted on the ground of newly discovered evidence where such evidence tends simply to discredit, or impeach a witness nor unless it is of that character as to necessarily cause the trial court to arrive at a different conclusion.

Even if the testimony relied on for gaining a new trial in this case was competent and sufficient, the motion does not show what diligence was used to discover this prior to the trial, nor is it shown when the testimony was first discovered, nor is it shown or even stated that Hockett, one of the contestants, did not know of the testimony prior His affidavit is not filed nor is any reason given for not

to the trial.

filing it.

In motions of this kind it must be shown that said testimony could not have been discovered by due diligence, and the facts relied on to show due diligence should be set forth in the motion.

For the reasons herein set forth the application for a new trial and a rebearing is denied.

COMMUTED HOMESTEAD ENTRY-FINAL PROOF-EQUITABLE ADJUDICATION.

JOHN R. PAYNE.

In the absence of any protest against the entry, or adverse claim, it may be sent to the Board of Equitable Adjudication, on filing new final affidavit, where the testimony of the claimant and his final affidavit were taken prior to the day fixed therefor in the published notice.

First Assistant Secretary Muldrow to Commissioner Stockslager, August 2, 1888.

I have considered the appeal of John R. Payne from your office decision of March 11, 1887, rejecting his final proof under homestead entry for Lots 2 and 4 and the E. SE., Sec. 14, T. 151 N., R. 61 W., Grand Forks land district, Dakota.

Payne made homestead entry for this land September 19, 1884, and advertised to make final commutation proof thereunder on October 1, 1886, before H. D. Fruit, probate judge and ex officio clerk of probate court of Nelson county, Dakota. The claimant's testimony was, however, taken on September 18, 1886, he filing therewith his affidavit stating "that the reason he appears on this the 18th day of September, 1886, at Dakota, Dakota Territory to have testimony taken in support of his homestead proof for Lots 2 and 4, and the E.SE. 4, Sec. 14, T. 151 N., R. 61 W., is that affiant will be temporarily absent at the time set for taking affiant's proof on account of being necessarily called away to settle up an estate of a deceased relative in England. Affiant further swears that he leaves all his stock on said land in care of his agent on said land and that affiant fully intends to return to said land and to continue to cultivate same and to reside thereon."

The testimony of the witnesses to the final proof was taken at the time and place specified in the published notice. This proof was rejected because the "evidence and final affidavit of claimant was not taken on the day designated in his published notice of intention to make final proof."

Upon appeal to your office the action of the local officers was approved; said proof was rejected with the proviso that "the claimant may proceed to republish and submit the proof already taken, filing therewith a new final affidavit, and his own testimony taken on the day fixed."

The final proof submitted shows improvements on the land to the value of $700, and a continuous residence for two years immediately preceding the date of said proof; and that the claimant when he started to England on September 19, 1886, left on his claim all his farm machinery and stock. In an affidavit dated April 18, 1887, and filed with the appeal from your office decision, the claimant states that he was then residing on the land and had fifty acres thereof in crop, and that all his stock, farm machinery, household goods and personal effects had been on the land ever since the offering of final proof.

Although the claimant's testimony was submitted prior to the date fixed therefor by the published notice, yet the testimony of the witnesses being taken at the time and place fixed, an opportunity was given to all interested to appear and object to said proof. It appears from the papers before me that no one objected to said proof, and that there is no adverse claimant for the land. Under all the circumstances of this case it seems to me that justice will be done and the rights of all parties in interest properly protected by allowing the claimant to complete his entry by filing within sixty days of notice hereof, a new final affidavit and making payment for the land at the same time, upon which said entry should be submitted to the Board of Equitable Adjudication for action thereon. Or if he so prefer the claimant may readvertise and submit new final proof at any time within the life of his original entry.

Your said office decision is modified in accordance with the views herein expressed.

PRACTICE-ENTRY-TIMBER LAND PURCHASE.

GROVE v. CROOKS.

During the pendency of a case on appeal, the local office should take no action affecting the disposal of the land until instructed by the Commissioner of the General Land Office.

A filing should not be allowed for land while it is covered by the homestead entry of another.

An application to purchase under the act of June 3, 1878, must be rejected, unless it appears that the land would be unfit for ordinary cultivation if it was cleared of timber.