face of Arnold's contest. The local officers allowed Hildreth to purchase, which action was affirmed by your office, but the Department by said decision of August 29, 1887, held that the contest of Arnold could not be defeated by the application of the entryman to purchase under the act of June 15, 1880; nor by the allowance of such entry by the local officers.

In this application it is alleged that Hildreth died in the fall of 1885, shortly after making his cash entry, and that applicants became the purchasers of said land July 29, 1887, and have had no notice of any contest until recently, that they are not advised that any action was taken on behalf of Hildreth, or his heirs, in resistance of the contest after his death, and that no disposition of the contest has been made by the local officers, and that it remains undecided at this date.

The allegation that the local officers have made no disposition of said contest was based upon the fact that the receiver failed to file an opinion in this case after the evidence had been submitted, but the record was transmitted to your office, with the appeal of Arnold from the action of the local office, allowing the cash entry of Hildreth.

Passing upon this question, the Department in its decision of June 9, 1888, said:

The irregularities of the local officers did not deprive the Commissioner of jurisdiction to pass upon that question, because Arnold's appeal brought up the entire record, and his rights depended upon a determination of that issue. Upon the record of evidence before him taken on the hearing, the Commissioner, by virtue of his supervisory power over the disposition of the public lands, had full jurisdiction in the case to render decision thereon as the tribunal of original jurisdiction.

The appeal of Arnold from the action of the local officers was taken prior to the death of Hildreth, and the Commissioner thereby acquired jurisdiction to pass upon the questions presented by said appeal, and to render judgment thereon, but it is alleged by the applicants that, at the time the appeal was filed by Arnold from the decision of the Commissioner Hildreth was dead and his estate was unrepresented. The death of Hildreth had not been suggested when the decision of the Department of August 23, 1887, was rendered, but it appeared from the record that service of the appeal was made upon Alvin Hildreth, the attorney for the entryman. If it be true, as alleged by the applicants, that Hildreth was dead when said appeal was taken, the Department could not acquire jurisdiction of said appeal, unless said estate was at that time represented, and service of said appeal was made upon the representative of said estate, or the attorney of said representative.

Therefore the only question to be considered in this case is on the service of the appeal from the decision of your office of September 22, 1885, affirming the action of the local office allowing the cash entry of Hildreth, made under the act of June 15, 1880. If Hildreth was in life at the date the appeal was taken from the action of your office of September 22, 1885, the Department acquired jurisdiction of the case upon said appeal, and could thereafter proceed to adjudicate and dispose of said appeal, although Hildreth may not have been in life at the date of the departmental decision.

It is alleged by Messrs. Weeks and Wells, in their affidavits made in support of their motion for review, that "Orville Hildreth, the above

named entry man, is now dead, and as deponent is informed and believes his death occurred in the fall of 1885."

In response to this sworn statement, made upon information and belief, the contestant, Arnold, files his own affidavit, in which he swears that:

Orville Hildreth died during the month of March, 1887, instead of in the year 1885, and that his means of knowing such to be the fact is that deponent assisted in laying out and attended the funeral of said Orville Hildreth.

This affidavit is corroborated by the affidavit of Dr. D. M. Slemmons, the attending physician in his last illness, who swears that Orville Hildredth died about March 8, 1887; that he visited Hildreth the day before he died, and his memorandum shows that his last visit was made March 8, 1887. This testimony is also corroborated by the affidavits of H. W. Arnold and Wilson II. Arnold.

The Department, in its decision of June 9, 1888, having directed that service of this motion be made upon' Arnold, with a view to giving him the opportunity to deny the allegation as to the death of Hildreth, and said affidavits having been served on Messrs. Weeks and Wells, who do not controvert the facts alleged therein as to the death of said Hildreth, it is evident that the Department had jurisdiction to pass upon said case when it rendered the decision of August 27, 1887, it appearing that service of said appeal was made upon claimant in accordance with the rules of practice.

Attached to the appeal of claimant from the action of your office of September 22, 1885, is the affidavit of W. H. Mott, who swears that he served a copy of said appeal on Alvin Hildreth in person November 3, 1885.

There is also attached to said appeal the affidavit of M. A. Butterfield, who swears that Alvin Hildreth represented the claimant on the trial of said case, and that he mailed a copy of the appeal to Orville Hildreth, the claimant, at Montrose, Dakota, November 12, 1885. There is no reason shown by the applicants why a rehearing should' be had in this case.

The contest of Arnold proceeded to a hearing, and after evidence had been taken and an opinion had been filed by the register adverse to said entry, he attempted to purchase under the act of June 15, 1880, which was allowed by the local officers, and affirmed by your office. But the Department reversed said decision, holding that the rights of Arnold, the contestant, could not be defeated by the application to purchase, or by the allowance of said entry by the local officers.

It is contended by the applicants that the rule in Friese v. Hobson was not in force at the date of said cash entry, and should not control this case. But the Department held, in the case of Roberts v. Mall (6 L. D., 446), that the rule in Friese v. Hobson governs in all cases that have not been finally adjudicated.

As this case was not finally adjudicated until the decision of the De

partment of August 29, 1887, it must be controlled by the decision of Friese v. Hobson, and I therefore see no reason for granting the rehearing asked for.

The motion is refused, and you will notify Arnold of his preference. right of entry within the time allowed by law.

PRE-EMPTION-SECOND FILING.

VESTA F. BONEBRAKE.

A declaratory statement filed without the authority or consent of the claimant, who neither ratified nor accepted the same, is not a legal filing, nor a bar to the exercise of the pre-emption right.

Secretary Vilas to Commissioner Stockslager, December 11, 1888.

On April 23, 1886, Vesta F. Bonebrake filed declaratory statement, alleging settlement on the 8th of the same month, upon Lots 1 and 2, and S. NE. 4, Sec. 5, T. 31 S., R. 36 W., Garden City, Kansas. He submitted proof at the local office in support of his claim on November 19, 1886. This proof was rejected by the local officers. The claimant appeals from your decision of March 14, 1887, sustaining the action below and holding his declaratory statement for cancellation.

The action of the local officers was based upon the fact that the records of their office show a declaratory statement to have been filed by the claimant on April 12, alleging settlement April 8, 1886, upon a tract in Sec. 7 of the township named.

The claimant avers in his corroborated affidavit, made December 8, 1886, that his declaratory statement last mentioned had been made out for him by an agent; that some five or six days afterwards, he learned that the land embraced therein was covered by a homestead entry; that he thereupon saw said agent, who told him that as his "declaratory statement papers" had not been filed, he could file for another tract, and that before December 8, 1886, he did not know that such. declaratory statement had been filed. The homestead entry mentioned appears by the records of your office to have been made April 9, 1886. The said agent, by affidavit, made December 18, 1886, corroborates the above, and sets forth, that about five or six days after making out the claimant's declaratory statement for the tract in Sec. 7, he learned that it was covered by a homestead entry; that about the same time he told the claimant that said declaratory statement had not been sent to the local office (seventy miles distant), and that he (claimant) could make another filing.

The affiant states that he told claimant that he would not send said declaratory statement to the local office, and that it "became of record through mistake," but does not explain the manner in which the said mistake occurred.

The affiant also swears that at the time of the conversation referred to, "he had sent no declaratory statement filing for the land."

The said declaratory statement for the tract in Sec. 7 was therefore apparently filed after the said conversation, and consequently after the claimant had revoked any authority which he may have given the agent to file it for him.

It appearing from the foregoing that this declaratory statement was filed without the knowledge or consent of the claimant, who has neither ratified nor acquiesced in the same, I can not concur in the conclusion reached by your office, that this was a legal filing, and that his right of pre-emption was exhausted thereby.

The claimant in his declaratory statement, filed for the land which he now seeks to enter, alleged settlement there on April 8, 1886, i. e., on the same day upon which he appears from your said decision to have claimed settlement upon the tract named in the declaratory statement, erroneously filed in the manner stated.

The claimant's proof, however, shows that he established actual residence upon the land involved on April 14, 1886, and that the same was continuous; that he built a sod house, twelve by fourteen feet, broke eighteen and cultivated four acres to corn.

The record showing that the claimant has complied with the law, his entry should, in the absence of an adverse claim, be allowed upon the proof submitted.

Your decision is reversed.

LOCAL OFFICE-ORDER OF BUSINESS.

HOLMAN v. BARRICK.

Local officers, with the approval of the Commissioner, may adopt such regulations as to the order of business in their offices as will tend to expedite the transaction of such business.

Under a regulation thus made, designating certain hou rs of each day wherein filings would be received, the register may properly refuse to receive an application to contest, presented outside of the hours so designated.

Secretary Vilas to Commissioner Stockslager, December 11, 1888.

I have considered the appeal of Henry M. Holman from your office decision of April 22, 1887, rejecting his application to contest George L. Barrick's homestead entry for the NE. of Sec. 14, T. 31 S., R. 39 W., Garden City land district, Kansas.

Barrick made homestead entry for said tract October 8, 1885, and on October 11, 1886, at 3.45 p. m., Holman by his attorney presented to the register at the local office an affidavit of contest against said entry. The register refused to receive or file these papers because of a rule of that office to receive filings only from nine o'clock a. m., until twelve o'clock noon of each day. These contest papers were again presented the next morning and refused because of the filing of another contest that same

morning, but prior to the presentation of Holman's papers. Holman thereupon appealed to your office, setting up that he by his attorney presented his contest papers at 3.45 p. m., October 11, 1886; that the register refused to accept the papers or to formally reject the same by endorsement on the back thereof; that at the time of first presenting these papers said attorney informed the register that another and dif ferent party than Holman was desirous of contesting said entry and he was informed that another and different affidavit to contest said entry would be presented on the following day; that said attorney thereupon employed one Nelson Davenport to take a position at said land office door so as to present said papers upon the opening of the office the next morning; that Davenport remained there all night and until nine o'clock next morning and entered the offi ce second in line and presented the contest papers of Holman to the register, who endorsed the following thereon:

Presented and rejected this 12th day of October, 1886, for the reason that a contest on same tract had been previously filed, which prior contest is still undetermined and pending. The register offered to file this subject to said prior contest but said course was declined by attorney for present contestant.

It is also alleged in said appeal that, the prior contest mentioned was first presented on October 12, 1886, and by the person just before Dav. enport in line, and that said person had remained at the door of the land office all night.

Your office, after the receipt of said appeal, called upon the local officers for a full report of the facts in this case. They made such report in letter dated March 23, 1887, in which it is said that owing to the amount of business transacted at that office and the insufficiency of the clerical force to handle that business, they had been authorized by the Commissioner "to only keep the office open one hour per day if we could not give more time to the public;" that the rule that filings could not be received at that office in the afternoon was well known and recognized by the public; and that this case was not appealed "as a matter of right or justice, but in a spirit of malignity and with a purpose solely to harass the local officers, override rules and authority and injure the public service." The action of the local officers was ap proved by your office, and in the decision it is said:

The rule established by you is in accordance with instructions from this office and seems to be fully warranted. The rule is for the benefit of the public to allow time for proper disposition of matters coming before your office.

In general circular of March 1, 1884, approved by Secretary Teller, it is directed, among other things, that the local officers "will be in attendance regularly at their office, keeping the same open for the transaction of business from nine o'clock a. m., till 4 o'clock p. m., and giving all proper information and facilities to persons applying therefor."

While under this regulation the local offices must be kept open between the hours designated there is nothing therein prohibiting the