a pre-emption upon one tract, and nothing more, and also to prevent declarations from being presented or filed where the intention of estab lishing a pre-emption is not bona-fide.

This construction of the law, so far as I can learn, has been uniformly adhered to, in the administration of the Land Department from the time of its promulgation to the present day.

In the case of Hannah M. Brown (4 L. D., 9) the same view was reiterated, and it was said:

When the law restricted persons otherwise properly qualified to "one pre-emptive right," it meant a right to be enjoyed in its full fruition; not that a fruitless effort to obtain it should be equivalent to its entire consummation. So when the law declares that a party having filed a declaration of intention to claim such right as to one tract of land should not file a second declaration as to another, it meant the filing on a tract open to such filing, and whereon the right thereby claimed could ripen into an entry.

The case under consideration comes clearly within the rule thus established.

The record discloses that the soldier's declaratory statement, which was filed on the first tract, was, in due course of time, consummated by Hugheson, and consequently, if Goist had persisted in adhering to his filing as to that tract, which he was not bound to do after he discov ered the adverse claim to it, "the right thereby claimed could not ripen into an entry." This being so, Goist cannot be held to have exercised the "one pre-emptive" to which he was entitled; nor was the filing such a one as the prohibition of the Revised Statutes is properly applica ble to, and therefore in my opinion your predecessor was right when he treated the first filing of Goist "as a nullity, and as no inhibition to his subsequently filing a legal and proper declaration for . other land," in the language of the circular of 1856.

Entertaining this view, it follows that Goist's application to file preemption claim upon the E. of NW. and the W. of NE. of Sec. 27, must be treated as though an original offer to file, which he was fully qualified to make. His right thereunder must date from the time he made actual settlement upon said tract, which was February 16, 1883; the action of the land officers can not change said date, for that action conferred no new right, but simply declared that the man was a qualified pre-emption claimant when he presented his filing, and the same ought then to have been received.

It follows naturally from this premise that the failure of the local officers to have noted on the proper records of their office his claim against said tract can not be permitted to work to his prejudice, inasmuch as he had done all the law required of him and the officers alone were derelict in this duty. His pre-emption claim stands therefore in a light not less favorable than it would have stood if he had been permitted by the local officers to do that which was offered to be done. Lytle v. Arkansas, 9 How., 314.

miles away, and in another range, and which it is not claimed was intended to have been embraced in his first application. In this view I concur. Though so called, it was not an "amendment" in the proper sense of the word. It was an application to file a pre-emption declaratory statement for a certain tract, and which application the local officers, declining to act upon, was transmitted to your office. The letter of your predecessor, of August 13, 1883, granting the application, seems to adopt this view and does not treat it as an "amendment," about which not one word is said. The application of Goist will not therefore be treated as an application to amend his first filing, but as, in contemplation of law, an application to file declaratory statement on the tract in section 27.

This it is asserted he is prohibited from doing by Section 2261 of the Revised Statutes; and the Commissioner, it is insisted, was without authority to confer such right, or, if possessed of that authority, the right acquired thereunder could only date, at the earliest, from the time. it was conferred by the Commissioner, which in this case was August 13, 1883.

If the Commissioner has power to confer a pre-emption right upon any person, I am unaware of the law which bestows that power. The act of Congress alone gives the one pre-emptive right to parties, otherwise qualified for its exercise. When that right has once been exercised, the privilege conferred is exhausted, and as the law now stands, there is no power anywhere, save in Congress, to authorize the exercise of the privilege again by the same person. It is therefore useless to discuss the question as to when the right, supposed to have been conferred by the Commissioner in this case, dated from; whether when he awarded it; when it was exercised, or from the date of the actual settlement, or when the application was presented?

The important question then is, had Goist exercised his one preemptive right, or did he come within the inhibition contained in section 2261 of the Revised Statutes?-which is as follows:

No person shall be entitled to more than one pre-emptive right by virtue of the provisions of Section 2259; nor where a party has filed his declaration of intention to claim the benefit of such provisions, shall he file, at any future time, a second declaration for another tract.

On March 3, 1856, Commissioner Hendricks issued a circular (1 Lester, No. 416), construing the fourth section of the act of March 3, 1843 (5 Stat., 619), from which section that of the Revised Statutes was taken. In that circular it was said:

Where a claimant, however, files a declaration, which may prove invalid, in consequence of the land applied for not being open to pre-emption, or by the determination against him as a conflicting claimant, or from any other similar cause, which would have prevented him from consummating a pre-emption under such declaration, such illegal filing will be treated as a nullity, and as no inhibition to his subsequently filing a legal and proper declaration for the same tract. .

or for other land; it being the purpose of the law to allow a claimant

a pre-emption upon one tract, and nothing more, and also to prevent declarations from being presented or filed where the intention of establishing a pre-emption is not bona-fide.

This construction of the law, so far as I can learn, has been uniformly adhered to, in the administration of the Land Department from the time of its promulgation to the present day.

In the case of Hannah M. Brown (4 L. D., 9) the same view was reiterated, and it was said:

When the law restricted persons otherwise properly qualified to "one pre-emptive right," it meant a right to be enjoyed in its full fruition; not that a fruitless effort to obtain it should be equivalent to its entire consummation. So when the law declares that a party having filed a declaration of intention to claim such right as to one tract of land should not file a second declaration as to another, it meant the filing on a tract open to such filing, and whereon the right thereby claimed could ripen into an entry.

The case under consideration comes clearly within the rule thus established.

The record discloses that the soldier's declaratory statement, which was filed on the first tract, was, in due course of time, consummated by Hugheson, and consequently, if Goist had persisted in adhering to his filing as to that tract, which he was not bound to do after he discovered the adverse claim to it, "the right thereby claimed could not ripen into an entry." This being so, Goist cannot be held to have exercised the "one pre-emptive" to which he was entitled; nor was the filing such a one as the prohibition of the Revised Statutes is properly applicable to, and therefore in my opinion your predecessor was right when he treated the first filing of Goist "as a nullity, and as no inhibition to his subsequently filing a legal and proper declaration for other land," in the language of the circular of 1856.

Entertaining this view, it follows that Goist's application to file preemption claim upon the E. of NW. and the W. of NE. 4 of Sec. 27, must be treated as though an original offer to file, which he was fully qualified to make. His right thereunder must date from the time he made actual settlement upon said tract, which was February 16, 1883; the action of the land officers can not change said date, for that action conferred no new right, but simply declared that the man was a qualified pre-emption claimant when he presented his filing, and the same ought then to have been received.

It follows naturally from this premise that the failure of the local officers to have noted on the proper records of their office his claim against said tract can not be permitted to work to his prejudice, inasmuch as he had done all the law required of him and the officers alone were derelict in this duty. His pre-emption claim stands therefore in a light not less favorable than it would have stood if he had been permitted by the local officers to do that which was offered to be done. Lytle v. Arkansas, 9 How., 314.

himself thereon; that all his acts in and about his said entry were done in good faith, and that he in all things complied with the pre-emption laws; that at the present time of year communication with the upper Mississippi river is very difficult, and can only be had at all by great exertion and unusual expense; that it will take a long time to procure the attendance of said persons to testify in said matters at said land office; that affiant verily believes if time is granted him he will be able to procure the attendance of said persons before said land office to testify in said matters; that affiant knows no other witnesses by whom said facts can be proven Wherefore affiant prays that the hearings in said actions may be postponed for a reasonable time to enable him to procure the attendance of said persons before said land office to testify in said cases. And further saith not.

At the hearing of said cases, February 23, there was no appearance for either the entrymen or the John Martin Lumber Company; but Special Agent Eaton appeared for the government, objected to a continuance of the case, and offered evidence in behalf of the governmentwhich was received.

In the report of the hearing the register and receiver say that it was their intention "to take the testimony on the part of the government, and then continue the case for sixty days to allow the John Martin Lumber Company to procure the attendance of their witnesses"; that it has been the policy of the office to grant continuances upon good cause shown; but that the special agent insisted that no good cause for a continuance had been shown.

By circular of the Department of August 6, 1884 (11 C. L. O., 161) in view of the exhaustion of the appropriation, registers and receivers were directed to postpone all hearings without date; but the register and receiver were advised in the letter ordering a hearing in these cases, that said hearing would not be subject to the instructions contained in that circular. Referring to this the local officers say:

Being in doubt as to the desire of the Department for an immediate hearing, we have taken the testimony submitted through Special Agent Eaton on the part of the government, and now submit the case to you for consideration as to whether a continuance shall be granted the John Martin Lumber Company or not.

Upon this point, in your decision of May 27, 1885, canceling these entries, you say:

The matter of granting continuances is in your discretion to be exercised in view of the established facts as a foundation for the continuance. That you submitted the evidence offered on behalf of the government on the day fixed for the hearing concludes the presumption that you were not satisfied that the continuance should be granted. Your exercise of your discretion was complete and proper, as appears from the record."

It is true that all motions for a continuance are addressed to the sound discretion of the local officers; but an abuse of such discretion should be corrected by the appellate tribunal. The claimants made a proper showing in full compliance with Rule 20 of Rules of Practice, and the continuance asked for should have been granted.

By letter of March 24, 1885, the register and receiver transmitted the record in the case of John Conners, saying:

At the time and place set, Webster Eaton, special agent of the General Land Office, appeared with his witnesses, and the testimony on the part of the government was taken. Also appeared Taylor & Taylor, and filed the affidavit of C. E. Brown, asking for a continuance. All the papers in the case are transmitted herewith for your consideration and action.

Letters to the same effect were prepared by the register and receiver, transmitting the record in each of the other cases.

Upon the receipt of the letters transmitting the records aforesaid, you considered all of said cases in your letter of May 27, 1885, and held that

The evidence for the government sustains the allegations of fraud and speculation involved in the hearings, and the defence being in default the entries are hereby canceled.

From said decision of May 27, 1885, and your office decision of July 17, 1885, refusing to review said decision, the John Martin Lumber Company, transferees under said entrymen, appeal.

It appears that Taylor & Taylor, attorneys for the John Martin Lumber Company, made a motion for a continuance of said case, February 21-two days before the day set for the hearing-and filed in support of said motion the following affidavit of C. E. Brown, the Secretary of the John Martin Lumber Company:

Cyrus E. Brown, appearing personally before me, and being sworn says: that he is the secretary of the John Martin Lumber Company, a corporation, and that said John Martin Lumber Company claims to be the owner by purchase from the entrymen of each of the above-mentioned tracts of land; that it paid a valuable consideration therefor; that notices of hearing in said cases were received by it on the 12th day of February, 1885; that the said James Conners,

are each of them unmarried men, and have not since the purchase of said lands so entered by them by the affiant had any permanent place of residence; that in the time since said notices were received by it affiant has not been able to discover the whereabouts of either of said persons; that affiant is informed and verily believes that said Conners, are laboring men by occupation, and are now engaged at some of the lumber camps upon the head waters of the Mississippi river a great distance from communication by mail or telegraph; that they and each of them are material and competent witnesses in said cases; and affiant is informed and believes will, if time is granted so that their whereabouts can be ascertained and their testimony secured before said land office, each testify that he entered upon said land in good faith, and built a good and substantial dwelling house thereon, with floors, windows, doors, roof and cellar; that he cleared off, grubbed, broke, and fitted for cultivation a large tract of said land, and made other valuable improvements thereon; that during the time prescribed by law, and for a long time thereafter he lived and made his home upon said land that he is a poor man and had no means of improving said land except his own unaided manual labor; that said entry of said land was made for the sole purpose of cultivation and to make a home for