improved said land on the 7th day of May, 1883," and claiming the benefit of said settlement and improvement. The land is of the unoffered class.

On June 12, 1883, Corno executed an affidavit of contest against Gjerberg's entry, alleging―

That the said Johan O. Gjerberg had not settled upon and improved said tract on the 7th day of May, 1833. That all the work he had ever done on the land above described was to assist in cutting a road across one corner of said land in 1882, in the summer, and that said entry was made in fraud of the rights of this affiant, who had made homestead entry No. 8,762 for said land on the 9th day of May, 1883.

This affidavit was filed in your office June 21, 1883, and is corroborated by two witnesses.

With your letter of June 22, 1883, the affidavit of contest was transmitted to this office, and you say:

As we are in doubt whether Rule 5 of Rules of Practice covers this case, we forward for instructions.

By the second paragraph of the Rule 5, referred to, registers and receivers are authorized to order hearings in "contests between homestead and pre-emption claimants." The language of the rule is such, that a question respecting its meaning might well arise, viz: whether it is intended that the district officers may order hearings in contests between homestead claimants and homestead and pre-emption claimants, or whether their authority is by it restricted to ordering hearings in contests between homestead and pre-emption claimants only. For your information and guidance in future, I will state that this office construes the rule to apply to hearings in contests between homestead claimants, also between homestead and pre-emption claimants. This case, coming therefore within the rule, is returned herewith for your action.

PREPARED TESTIMONY-CROSS-EXAMINATION.

DE MOTT v. DAY.

A hearing may be had on testimony prepared by plaintiff's attorney in his office, if accepted by defendant's attorney, with privilege of cross-examination.

Acting Commissioner Harrison to register and receiver, Bloomington, Nebr., December 20, 1883.

GENTLEMEN: I have considered the case of Edwin De Mott v. Almira M. Day, involving the latter's homestead entry No. 9,438, made October 19, 1881, upon the E. NE. 33, and W. NW. 34, 2 N., 22 W., on appeal from your decision dismissing the case.

It appears that when the case was called for trial the plaintiff's attorney submitted the written testimony prepared by him at his office, of plaintiff and his witnesses, with a proposition to permit the defendant 4531 L 0-15

to cross-examine the said witnesses; that the proposition was agreed to by defendant, but, notwithstanding, you rejected such testimony; whereupon, the plaintiff failing to introduce any other evidence, you dismissed the contest on motion of defendant; and it is from said action that the plaintiff appeals to this office.

Your decision was based on the ground that when both parties appear for trial, as was the case in the present instance, the examination must be made orally in the presence of the register and receiver, and that the testimony must be written down by one or the other of said officers. Such is the regular course of procedure, but there is no objection to parties stipulating to waive oral examination before the local officers and submitting an agreed statement of facts or testimony taken in the manner and with the reservation hereinbefore mentioned.

Hence, I think the evidence offered by plaintiff's attorney should have been received by you, on agreement of defendant to accept the proposition of the former to cross-examine.

The case is therefore remanded for further trial, and you are instructed to allow the introduction of the evidence proffered by the plaintiff's attorney, with privilege of cross-examination by defendant of plaintiff and his witnesses, as agreed upon by the parties.

At the proper time report action taken.

HOUR OF DAY-ADJOURNMENT.

CROSS v. BOWMAN.

Where the local officers fail to fix the hour of day to which a hearing is adjourned, the parties have the entire day in which to appear.

Commissioner McFarland to register and receiver, Oberlin, Kans., January 3, 1884.

GENTLEMEN: I have considered the case of John H. Cross v. Charles H. Bowman, involving the latter's timber-culture entry, No. 2,234, made August 29, 1878, upon the SW. 4, 28, 2, 29. The case is before me on appeal by the plaintiff from your decision dismissing the contest.

The contest, it appears, was instituted April 28, and the trial set for July 26, 1883, at 10 o'clock. When the case was called on the latter date both parties appeared by attorney. The attorney for defendant moved a dismissal of the contest on the ground that, when instituting contest, plaintiff failed to file application to enter, as required by section 3 of the act of June 14, 1878 (Bundy v. Livingston, 9 Copp, 173). Whereupon plaintiff produced evidence showing that application to enter under the timber-culture law had been filed by him, as required by said act. You therefore overruled defendant's motion, and upon agreement of counsel continued the case to September 24, 1883. At 50 minutes past 11 o'clock, a. m., on that day the attorney for defend

ant appeared and filed a motion to dismiss because the plaintiff was in default.

This motion you granted.

At 1 o'clock the same day plaintiff appeared, by his attorney, and declared himself ready for trial. On October 16, 1883, an appeal was filed by him from your decision dismissing the contest; and in support of his appeal he makes the point that as no time was fixed when the case was to be called on September 24, 1883, he was not restricted to any particular hour on that day in which to enter an appearance.

On the other hand it is urged by defendant that in the absence of any fixed time the case stood for trial at the same hour set for the calling of the case on the day of adjournment, viz, at 10 o'clock a. m.

The Rules of Practice prescribe that notice of the time and place of hearing shall be given. This rule applies as well to adjourned as to original hearings, and the practice in the one case should be the same as in the other. In neither case should rights of parties be prejudiced by the adoption of strict technical rules outside the Rules of Practice, nor beyond a reasonable discretion within those rules.

As you did not fix the hour to which the hearing was adjourned in this case, and as the plaintiff actually appeared, as before stated, it is my opinion that you erred in dismissing the contest under the circumstances.

Your decision is accordingly reversed, and the case remanded for hearing upon its merits.

11. NOTICE.

OF CONTEST-TO HEIRS.

DENNY v. TAYLOR'S HEIRS.

The notice of contest in this case should have been served upon the several heirs, and not upon the administrator only. Notice served upon one of the heirs is not sufficient.

Commissioner McFarland to Curtis & Burdett, Washington, D. C., July 31, 1883.

GENTLEMEN: Your letter of April 14 last was duly received, asking in behalf of Francis M. Denny, for whom you appear as attorneys, a review of my decision of October 30, 1882, dismissing the case of said Francis M. Denny v. the Heirs or Devisees of Ralph Taylor, deceased, involving homestead entry No. 1,492, made by said Taylor May 31, 1879, upon the N. SW. 1, SW. NW. 1, 2, 46 N., 19 W., Duluth, Minn. My said decision was based on the ground that the notice of contest was defective, in that it was served upon the administrator instead of upon the heirs or legal representatives of the deceased homestead claimant.

Your request for review is made on the claim that Denny is a poor man and unable to undergo the expense necessary to meet the requirements of my said decision; that he has taken up his residence and placed valuable improvements on the land; that due notice was served upon George Taylor, who, besides being the administrator, is also a brother and an heir of the deceased homesteader; and that no one is contesting the right of Denny to make entry.

While recognizing the hardship which, under the circumstances presented by you, will necessarily be entailed upon your client, by compelling him to bring a contest de novo in accordance with the requirements of said decision, I see no possible escape from such a proceeding.

I arrive at this view after a careful consideration, which convinces me that to hold that notice to one of the heirs is sufficient to put all the others on their guard, as claimed by you, would be unwarrantable as well as unjust to those heirs who, as a matter of fact, were not actually notified. Although notice to them was but constructive, they would nevertheless be estopped from denying receipt thereof, should they apply to be heard on that plea after the case had been tried and decided against them. It would be error, therefore, to conclude the rights of such heirs on the ground that the action of the administrator and heir, George Taylor, in allowing the case to go by default after due notice, was the joint act of all the heirs.

For these reasons I must decline to modify my said decision.

SIGNING OF.

HAHN v. SPENCER.

The notice of contest must be signed by one or both of the local officers. It cannot be signed by a clerk.

Commissioner McFarland to register and receiver, Larned, Kans., August

1, 1883.

GENTLEMEN: Your letter of the 24th ultimo was duly received, transmitting the appeal of the plaintiff in the case of William H. Hahn v. Ichabod R. Spencer, involving homestead entry No. 6587, made September 30, 1881, upon the NE. 1, 6, 24, 33.

It seems that on the day set for hearing the defendant made special appearance and moved the dismissal of the case, on the ground that the notice of contest was not legally issued, in that neither the register nor the receiver signed or authorized the same.

The said notice appears to have been prepared by a clerk of your office, and signed by him as follows: "C. A. Morris, Register, S." You submit separate and disagreeing decisions.

The register holds the notice to be sufficient; the receiver that it is not, and it is from the decision of the latter that the plaintiff appeals.

Rule 9 (No. 2) of Practice prescribes in positive terms that "it must be signed by the register and receiver, or by one of them."

I must, therefore, affirm the decision of the receiver in recommending the dismissal of the case; and you will so advise the parties in interest, allowing the usual privilege of appeal.

PUBLICATION-REGISTERED LETTER-THIRTY DAYS.

BUTTERFIELD AND PHELPS.

The instructions of August 13, 1883, are not retroactive. Copies of published notices must be mailed to last known address at least thirty days in advance of a hearing.

Commissioner McFarland to register and receiver, Fargo, Dakota, January 15, 1884.

GENTLEMEN: I am in receipt, by reference from the Department of Justice, of a letter addressed to the Honorable Attorney-General on December 20, 1883, by Messers Butterfield and Phelps, of Montrose, Dak., relative to the matter of mailing by registered letter a copy of the published notice in contested cases to the last known address of each person to be notified.

The writers refer to Rule 11 of Practice requiring such mailing, and to the letter of this office of August 13, 1883, addressed to you (Copp's L. O., vol. 10, p. 189), in which you are instructed that the rule requiring at least thirty days' notice of hearing, would be deemed applicable to such registered letters, and they inquire whether the latter ruling should be deemed to have a retroactive effect, stating, that under the construction of Rule 14, which had previously prevailed in the practice, at district land offices, registered letters had been mailed two weeks in advance of hearings instead of thirty days.

You are advised that the instructions of August 13, 1883, take effect only from the receipt thereof at the local office. Rule 14 of Practice does not specify the time when a registered letter shall be mailed. It appears to have been inferentially held that the two weeks before hearing, during which notice under Rule 14 is to be posted on the land, is the time required for a registered letter to be mailed in advance of hearings. This construction was reasonable, and the mailing of letters in accordance therewith was a sufficient compliance with the rule prior to the promulgation of different instructions.

You are moreover advised that when notice is given by publication, it is the publication that constitutes legal notice, not the registered letter. The latter is the transmittal of a copy of the legal notice, and is a requirement adopted to secure actual as well as constructive notice in cases of publication. This requirement must be observed for the reason upon which it is founded, and the rule that such copies shall be mailed at least thirty days in advance of hearings will be strictly adhered to.