of errors, as required by Section 997 of the Revised Statutes, is no ground for dismissal for want of jurisdiction. If an assignment is filed in accordance with the requirements of paragraph 4, Rule 21, it will ordinarily be enough."

This rule of the supreme court required the appellant, at least six days before the case was called for argument, to file a brief containing an assignment of the error relied upon.

Now if rule 88 stood alone, there might be some reason for holding that it is merely directory, as the court did with reference to the sec tion of the statutes just quoted; but being taken together with rule 90 such construction can not be allowed to obtain. It is rule 90 as well

as rule 88 that has not been complied with. And the United States supreme court, in cases where the statute, and also its rule above mentioned, have not been complied with, have invariably dismissed the writ of error. Portland Co. v. United States (15 Wall., 1); and Treat & Dickerson v. Jamison (20 id., 652).

It is also again insisted in the argument filed with the motion before me, that the notice of appeal originally filed in this case was in itself a sufficient specification of errors in the decision of your office. This point was very fully considered by me when my decision of June 5th last was rendered, and was decided to be not well taken; and I do not deem it well to say more now on the subject, further than that I am of opinion that my conclusion then arrived at was a correct interpretation of the law and the practice.

After a very careful examination of all the questions presented for my consideration, I deny the said motion, and transmit herewith the papers for the files of your office.

REPAYMENT-LIMITED BY STATUTE.

HEIRS OF ISAAC W. TALKINGTON.

The authority of the Department to make repayments is limited by statute and does not cover a case where the purchase price of land has been twice paid to the gov ernment.

Acting Secretary Muldrow to Commissioner Sparks, August 31, 1886.

I have considered the appeal of the heirs of Isaac W. Talkington from your decision of February 11, 1885, refusing the repayment of $200 alleged to have been paid by said Talkington in commuting Dardanelle, Arkansas, homestead entry, No. 3886, for the N. of SE. of Sec. 21, T. 71 N., R. 18 W.

Talkington made entry for said tract February 15, 1870, and in April, 1874, died. Subsequently thereto, to wit, January 4, 1884, the heirs purchased said tract under the second section of the act of June 15, 1880, pursuant to the departmental decision of October 22, 1883 (2 L. D., 46).

In the present application certain affidavits set forth that on August 20, 1872, Talkington commuted said homestead entry to cash entry,

paying for the land the sum of $200, and in support of such assertion a paper is produced purporting to be duplicate receipt No. 7419, dated Dardanelle, Arkansas, August 20, 1872 in favor of Isaac W. Talkington, and signed by John C. Austin, receiver, for $200 in full for said tract, and across the face of which is written, "commuted from Hd. No. 3886, dated February 14, 1870." The heirs now ask for the return of

said $200.

On the other hand, the records of your office fail to show that said cash entry was made, and the receipt of said $200 was never reported by the local officers; indeed, the returns show that cash receipt No. 7419 was issued to another person in September 1872 for a different tract of land. Thus the fact of such payment in the present state of the case is involved in some doubt. The application can however be disposed of. The power of repayment by the Secretary of the Interior is limited and defined by statute. Section 2362 of the Revised Statutes provides that:

"The Secretary of the Interior is authorized upon proof being made to his satisfaction, that any tract of land has been erroneously sold by the United States, so that from any cause the sale cannot be confirmed, to repay to the purchaser, or to his legal representatives or assignees, the sum of money which was paid therefor, out of any money in the Treasury not otherwise appropriated."

The act of June 16, 1880 (21 Stat., 287), makes further provision for repayment in certain cases. Section 2 provides that, "in all cases where homestead or timber-culture or desert land entries, or other entries of public lands have been heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed and cannot be confirmed," the amount of purchase money, fees, and commissions may be repaid.

This being all the law applicable to repayment in such and like cases, I am of opinion, even admitting the fact of payment, that this Department is not vested by law with authority to make repayment in this case.

For this reason said decision is affirmed.

CONTESTANTS PREFERENCE RIGHT-ACT OF JUNE 15, 1880.

HOLLANTS v. SULLIVAN.

Failure to assert the preference right of entry within the statutory period after cancellation deprives the successful contestant of all rights gained by the contest, and he cannot thereafter be heard as a party in interest to object to the subsequent purchase of the land under the act of June 15, 1880.

The right of purchase under said act is not affected by reason of the original homestead affidavit having been illegally made before a clerk of court.

Acting Secretary Muldrow to Commissioner Sparks, August 31, 1886. I have considered the case of William Hollants v. Michael Sullivan, involving the SE. of Sec. 10, T. 104 N., R. 54 W., 5th P. M., Mitchell,

Dakota, (Sioux Falls series,) on appeal from your office decision of February 16, 1885, adverse to Hollants.

The record shows the following facts: May 11, 1880, Sullivan made homestead entry of the tract described. October 25, 1882, Hollants commenced contest against said entry, charging failure to settle upon and improve the tract as required by law. Hearing was set for January 12, 1883, notice of which was given by publication and by registered letter sent to claimant's last known address.

Claimant was not present, nor was he represented at the hearing. On the affidavit of contestant, corroborated by two witnesses, setting forth that Sullivan had not cultivated, built or resided upon, or in any way improved the tract since the date of entry, the register and receiver adjudged the entry forfeited. Said judgment was rendered on the day of the hearing, to wit, January 12, 1883, and no appeal was taken therefrom. September 14, 1883, your office, in the regular course of business, and following the judgment of the local office, canceled said entry upon the records. In August, 1883, however, Sullivan had applied to purchase under the act of June 15, 1880, and on the 18th of the same month he was allowed to purchase, and final cash certificate was issued to him by the local office.

June 24, 1884, Hollants filed in the local office his application to have Sullivan's said cash entry canceled, and at the same time applied to enter the tract, he alleging that about June 1, 1883, he went upon the land and made bona fide improvements; that he had broken twentythree acres of the land, and had continued to occupy the same.

June 28, 1884, said application was forwarded to your office, which, on the 6th of September, 1884, held Sullivan's purchase under the act of June 15, 1880, valid, and rejected Hollants' application to enter. Hollants did not appeal.

September 30, 1884, your office, apparently on its own motion, reconsidered and rescinded its decision made as above, and held that as Sullivan bad failed to appeal from the judgment of forfeiture rendered by the register and receiver, in the contest brought by Hollants, that judgment became final and vested in contestant a preference right of entry under the act of May 14, 1880. Sullivan's homestead and cash entry were therefore held for cancellation, and the preferred right of entry was awarded to Hollants.

The register and receiver reported that the parties were notified. October 7, 1884, of the decision last above mentioned, but that the notice to Sullivan was returned unopened.

Thereupon Hollants again on the 24th of October, 1884, applied to make homestead entry of the tract. His application was on the same day granted and he entered the land under the homestead law.

February 16, 1885, your office again, on its own motion, so far as the record shows, reconsidered the case, and came to the conclusion that

Sullivan had the superior right, and was entitled to purchase under the act of June 15, 1880.

Your predecessor therefore set aside your office decision of September 30, 1884, and reinstated that of September 6, 1884. The effect of this was to cancel Hollants' homestead entry and award to Sullivan the right of purchase, which, as has been stated, he had availed himself of. It is from this action that Hollants appeals.

Recurring to such of the facts presented by the foregoing recital as are necessary to a decision of the case, we find (1) that Hollants, as a successful contestant, failed to avail himself of his preferred right of entry under Section two of the act of May 14, 1880, and (2) that Sullivan after the expiration of said preferred right and prior to the cancellation of his entry on the records of your office, applied and was allowed to purchase under the act of June 15, 1880. Hollants not only permitted the time during which the law gave him a preferred right of entry to elapse, but he waited until June 14, 1884, nine months after the cancellation of Sullivan's entry on the records of your office, and ten months after Sullivan's purchase under the act of June 15, 1880, before making a move in the direction of claiming the tract. He then asked that Sullivan's purchase be set aside and that he be allowed to enter.

Your office very properly by its first decision, that of September 6, 1884, in the case, held Sullivan's purchase valid and rejected Hollants' application. Under the rulings and decisions of the Department in force at that time, Sullivan had a right at any time pending the contest to purchase under the provisions of section two of the act of June 15, 1880, and thus as against the contestant as well as the rest of the world could secure title to the tract in contest.

This interpretation has recently been changed in the case of Freise v. Hobson (4 L. D., 580), but such change does not affect rights which were acquired and which as in this case became vested under previous rulings and decisions. But the former ruling under which Sullivan was allowed to purchase does Hollants no harm, for, under any construction or interpretation of the law, it deprives him of no statutory right. Not having asserted his preferred right as a successful contestant, he at the end of thirty days after notice of cancellation occupied a position with reference to his right to enter in no way superior to that of any other person qualified to enter. His rights were then, so far as his contest was concerned, simply on a par with those of others who might desire to claim the land.

This being true, he could not at the date when he asked for the cancellation of Sullivan's cash entry make his demand as a party in interest, for he had waived whatever statutory right he might otherwise have claimed, by his failure to assert it in time. The question as to Sullivan's rights under his purchase therefore becomes one solely between him and the government, and, as before stated, his right to pur

chase as he did was indisputable under the rulings and decisions governing your office and the Department at that time.

It is objected, however, by appellant that the affidavit made by Sullivan when he made his homestead entry was not in accordance with law; that therefore his homestead entry was illegal and void, and that no right of purchase under the act of June 15, 1880, could be predicated upon such an entry. The ground of objection to the affidavit is that it was made before a clerk of court, under Section 2294 of the Revised Statutes, whereas it could not legally be so made, for the reason that neither Sullivan nor any member of his family were then residing on the land.

Admitting the fact to be as charged, such irregularity could be cured by the filing of a properly executed affidavit, and would not render the entry void, but only voidable; and said entry being on its face valid, segregated and appropriated the land covered thereby, so long as it remained of record: Graham v. Hastings & Dakota Ry. Co. (1 L. D., 380); St. Paul, Minneapolis & Manitoba R. R. Co. v. Forseth (3 L. D., 446.)

The case consequently comes clearly within the purview of the act of June 15, 1880, so as to authorize Sullivan's purchase thereunder. It was long held by your office, and that view has been sustained by the Department (see case of George W. Maughan, 1 L. D., 53), that pur chase may be made under section two of the act of June 15, 1880, although the homestead entry was void at inception. I do not stop here to consider the correctness of the view thus enunciated, for it is not necessary to this case, but refer to it to show the extent to which the Department has gone in administering the act of June 15, 1880.

Your office decision awarding the tract in question to Sullivan under his purchase is affirmed.

SETTLEMENT RIGHTS-ACT OF MAY 14, 1880.

DANIELL v. DANFORTH.

A pre-emptor and homesteader with conflicting claims having agreed to certain mutual concessions for the purpose of terminating the controversy, it was competent for the pre-emptor to abandon his claim as such and take the land as a homestead, and he would in such case be entitled to the benefit of his settlement as provided in the act of May 14, 1880, to the exclusion of intervening claims. Acting Secretary Muldrow to Commissioner Sparks, August 31, 1886.

I have considered the case of Arthur Daniell v. C. A. Danforth, involving lots 3 and 4 of Sec. 1, T. 20 N., R. 2 E., Olympia, W. T., où appeal by Daniell from your predecessor's decision of December 13, 1884, sustaining the decision of the local officers which rejected his ap plication to file a pre-emption claim for said land.

The facts material to the issue raised by the appeal are as follows.