and twenty-two acres of breaking, and Erickson filed a relinquishment; that said Rankin made affidavit-of entry before the clerk of the court of a county other than that in which the land is situated.

Rankin had never made any settlement himself on said land at the time of his homestead entry, and never attempted to do so until May 13, 1885, and the contest in this case was inaugurated by affidavit filed May 8, 1885, by said O'Connell; the allegations of contest being that, "said Luther D. Rankin does not, and never did reside on said tract of land, nor made settlement thereon, and never has in any way improved or cultivated the same; that said tract is not settled upon and cultivated by said party as required by law; that the affidavit upon which said entry is based was made before a clerk of the court; that the same alleges residence upon and improvement of said land by said Rankin and that the same to that extent is false and fraudulent."

Until after the inauguration of this contest it is clear from claimant's own testimony that he had established no residence upon the land and had not even seen it. It is equally clear that his affidavit was made before the clerk of the court by advice of his attorney, who also misled him in regard to the necessity of establishing his residence thereon.

You say, "I do not think the claimant should be deprived of his entry and the valuable improvements thereon by reason of the defect in his affidavit. He appears to have honestly believed that he could legally make the affidavit as he did. He is hereby allowed to make before either of you, and file a proper affidavit."

You cite also in support of your said decision Thompson r. Lange (5 L. D., 248), and Roe v. Schang (5 L. D., 394).

These cases will not under the facts in this case support your de cision.

In the case of Thompson v. Lange, Lange had filed a supplemental homestead affidavit fifteen days before the contest was instituted, which cured the defects in his original entry, and such defect might be cured before the intervention of an adverse claim; and in Roe v. Schang, the insufficiency of such affidavit was not put in issue in the contest nor alleged in the appeals.

In the case under consideration however, Rankin had filed no supplemental affidavit, and the irregularity, or defect in his original entry is directly in issue.

In Brassfield v. Eshom (6 L. D., 722), it was held that a similar defect could be cured before the intervention of an adverse claim.

Eshom in said case had moved upon the land with his family before the filing of Brassfield's affidavit of contest and it was held that Eshom's entry, "although originally defective and voidable, was cured by his subsequent settlement, residence and improvements, as shown, and the same having been thus cured prior to the institution of said contest of Brassfield, the latter cannot be held in this respect to have acquired any rights thereunder."

In the case under consideration however the contest affidavit was filed before claimant ever saw the land or made any attempt to establish his residence thereon, and the preference rights of contestant have therefore intervened.

Section 2294 of the Revised Statutes provides,

In any case in which the applicant for the benefit of the homestead, and whose family, or some member thereof, is residing on the land which he desires to enter, and upon which a bona fide improvement and settlement have been made, is prevented by reason of distance, bodily infirmity, or other good cause, from personal attendance at the district land office, it may be lawful for him to make the affidavit required by law before the clerk of the court for the county in which the applicant is an actual resident and to transmit the same, with the fee and commissions, to the register and receiver.

Rankin not being married and neither himself nor any member of his family being residents upon said land at the time his affidavit was made before the clerk of the county, and as such defective entry was not cured prior to the intervention of O'Connell's rights as contestant, Rankin's entry was illegal and must be canceled.

Your said decision is therefore reversed.

DESERT LAND ENTRY-COMPACTNESS—EQUITABLE ADJUDICATION.

JOSEPH HIMMELSBACH.

An amendment of the entry will be required where the rule as to compactness has not been observed; and such an amendment, when made after the lapse of the statutory period for reclamation and proof thereof, should only embrace land already reclaimed.

Rule 23 of Equitable Adjudication is applicable where the failure to make proof and payment within the statutory period was the result of ignorance, accident, or mistake, and no adverse claim exists.

Rule 30 of Equitable Adjudication is applicable where failure to reclaim the land and make proof and payment within the statutory period was the result of ignorance, accident, or mistake, or of obstacles which could not be overcome, and no adverse claim exists.

Secretary Vilas to Commissioner Stockslager, August 21, 1888.

I have considered the appeal of Joseph Himmelsbach from the decis ion of your office of September 25, 1886, sustaining the action of the local officers in rejecting his proof and suspending his desert land entry, No. 42, for the NE. 4 NW. 4, Sec. 31, and SW. 4 of Sec. 30, T. 32 N., R. 99 W., and SE. 4, and NE. SW. 1, and E. NW. 4, and NW. 4 NW. 4, Sec. 25, T. 32 N., R. 100 W., and SW. 1 SW., Sec. 24, and E.SE.Sec. 23, T. 32 N., R. 100 W., Evanston district, Wyoming Territory.

The entry was made, September 13, 1879, and August 7, 1886, claimant having relinquished as to the NE. 1, NW. 4, Sec. 31, offered proof and tendered payment as to the balance of said land.

The tract, after said relinquishment, was, as appears from the plat thereof, nearly two and a half miles in length and from a quarter to a half mile in width, running in a northwesterly direction through parts of four sections of land, and lying in a zigzag line so as to form a narrow strip.

This, in the language of the general circular of March 1, 1884 (p. 35), s "a gross departure from all reasonable requirements of compactness.” The circular of instructions to local officers of September 3, 1880, expressly applies to entries of desert lands made before its issuance, and 'provides that such entries made on "lands not compact in any true sense" will be suspended by your office and "the parties called upon to amend their entries so as to conform to law; failing to do which, after proper notice, such entries will be held for cancellation." (7 C. L. O., 138).

No excuse being offered for this failure to observe the requirement of compactness, your office, pursuant to said circular, properly required the claimant to amend his entry "so as to conform to law."

But, it further appears, that proof of reclamation was not made and payment for the land tendered until about four years after the statutory period for making such proof and payment had elapsed, and said proof does not show whether the land was reclaimed within the statutory period or thereafter. The entry, therefore, after it is properly amended, will have to be submitted to the Board of Equitable Adjudication for confirmation, under either Rule 29 or 30 of the "additional rules" of equitable adjudication, of April 28, 1888 (6 L. D., 799)—under the for mer, if the land was reclaimed within the statutory period, and under the latter, if not reclaimed within that period. Those rules authorize the submission of desert land entries to the Board for confirmation in the following cases:

29. All desert land entries in which the final proof and payment were not made within three years from the date of entry, but in which the claimant was duly qualified, the land properly subject to entry under the statute and subsequently reclaimed in time according to its requirements in which the failure to make proof and payment was the result of ignorance, accident, or mistake, and in which there is no adverse claim.

30. All desert land entries in which neither the reclamation, nor the proof and payment were made within three years from date of entry, but where the entryman was duly qualified, the land properly subject to enter under the statute, the legal requirements as to reclamation complied with, and the failure to do so in time was the result of ignorance, accident, or mistake, or of obstacles which he could not control, and where there is no adverse claim.

In order to avail himself of the benefit of Rule 29, the claimant must show that his failure to make proof and payment within the statutory period "was the result of ignorance, accident, or mistake," and under Rule 30, that his failure to reclaim the land and make proof and payment within said period, "was the result of ignorance, accident or mistake, or of obstacles which he could not control." Neither rule applies where there is an adverse claim.

The entry in this case, therefore, must in the first place, be amended "so as to conform to law" in the matter of compactness, and in the second place, the claimant must make proof of facts bringing the entry within the provisions of one or the other of the above rules, so that it may be submitted thereunder to the Board of Equitable Adjudication for confirmation.

The amendment can only embrace land already reclaimed at the date thereof.

You are instructed to direct the local officers to allow the claimant, within ninety days after notice hereof, to file such amendment and make payment for the land and proof of reclamation in support of the amended entry, and, also, proof bringing said entry within the purview of one or the other of said rules, when the same will be submitted for confirmation to the Board of Equitable Adjudication. The decision of your office is modified accordingly.

DURESS-ABANDONMENT-FINAL PROOF.

PLATT ET AL. v. GRAHAM.

It is not necessary that there should be actual personal violence to constitute duress. It may be effected by that degree of constraint or danger, either actually inflicted, or threatened and impending, which is sufficient in severity or apprehension to overcome the mind and will of a person of ordinary firmness.

Temporary absences from the land that indicate no intention of abandonment may be excused after the establishment of a bona fide residence.

Proof taken before business hours, on the morning of the day advertised, is irregular and defeats the object of the notice, and in such a case new proof will be required.

Secretary Vilas to Commissioner Stockslager, August 22, 1888.

I have considered the appeal of John H. Graham from your decision of August 17, 1886, rejecting his final proof for the W. of the NE. 4 and the E. of the NW. of Sec. 25, T. 33 S., R. 16 W., Larned land district, Kansas, and awarding the tract to the contestants.

Graham filed Osage declaratory statement August 9, alleging settlement May 10, 1884. His first act of settlement consisted in staking out his claim, and commencing a dug-out-which last he subsequently abandoned, being in doubt whether it was within the limits of his claimand the commencement of a second dug-out near the centre of his claim which he was engaged in completing between May 10, and about June 19, 1881, when he went to Harper, Kansas, about sixty miles distant, on account of the sickness of his mother; but soon after returned and re mained until some time in August following, when he again went to Harper with his father. This visit to Harper appears to have been caused by sickness of his father and sister. He returned to his land several times between August and November, and exercised acts of ownership. On the 5th or 7th of November, he, and his father, supplied themselves with pro

visions and returned to their tract, and commenced plowing. Some four acres had been broken upon this tract by claimant, between the date of his settlement and July 16, following. While engaged in plowing he was attacked by John W. Platt, one of the plaintiffs in this case, and by the threats, menaces, and intimidations of Platt, Tennison, and others, under the leadership of one Flato, was driven from the land in question. The land had been enclosed by a wire fence, by said Flato, a member of the cattle firm of Flato & Platt, after claimant's settlement and prior to November 7, which enclosure embraced four sections, including the land in question. Plaintiffs, Platt and Tennison, were in Flato's employ as cattle-men, or "cowboys," and had made the following filings which covered the land in question, namely:

Platt filed his Osage declaratory statement for the SW. of the NE. 1, the SE. of the NW. 4, the NW. 4 of the NE. 4, and the NE. 1 of the SW. 4, of said section, November 24, 1884, alleging settlement Sepember 23, 1884. Tennison filed his Osage declaratory statement for the NW. 4 of the NE. 4, and the NE. 4 of the NW. 4, of Sec. 25, and the SW. of the SE. 4, and the SE. 4 of the SW. 4, of Sec. 24, said township and range. Tennison thus covered the north eighty, and Platt the south eighty, of claimant's tract.

On September 24, 1884, Graham advertised, by the usual notice, his intention to make final proof before George H. Sexton, a notary public at Sexton, Kansas, November 15, 1884. He arrived there with his witnesses on the night of the 14th, preceding the day advertised for making final proof, when he was advised that Flato and his party, includ ing the plaintiffs Platt and Tennison, and six others, were camped back of Sexton's house, and claimant and his party were advised by Sexton's clerk to conceal themselves, and not make known their presence, and he conducted claimant and his witnesses to a place some distance from Sexton's house, where they camped for the night. Claimant and his wit nesses appear to have been intimidated by the presence of Flato and his party; and their fears appear to have been participated in by the notary public, who waited upon claimant and his witnesses at four o'clock on the morning of the 15th, and advised him that it would be necessary for him to take his proof then if he took it at all, giving as an excuse therefor press of business. Claimant and his witnesses were also informed that Sexton had been offered one hundred dollars by Flato to prevent claimant from making his final proof. Claimant demurred to making proof at that hour, but was advised by the notary public, who claimed to have knowledge of the law, that it would be perfectly legal and proper to make his proof at that time. Proof was accordingly hur riedly made, at four o'clock on the morning of November 15, 1884. Immediately upon making proof claimant and his witnesses departed, avoiding Flato, Platt, Tennison, and others of their party.

Upon learning that claimant had made proof, Platt and Tennison filed protest, which was forwarded to the local office, whereupon a hear