the local office to receive, but patent had not yet issued on such final proof, and while thus under consideration, the jurisdiction of your office to institute inquiry into the nature of the claim was undoubted, and the manner of its exercise deprived no one of his rights, or opportunity to be fairly heard.

The application is therefore denied.

PRE-EMPTION CONTEST-FINAL PROOF

BAILEY . TOWNSEND.

A contest against a pre-emption claim should not be permitted before offer to make final proof therefor.

Final proof should not be submitted during the pendency of a contest, though the same was prematurely allowed.

Secretary Lamar to Commissioner Sparks, September 27, 1886.

I have considered the case of Charles A. Bailey v. Winfield P. Town send, as presented by the appeal of the latter from the decision of your office, dated June 4, 1885, rejecting his final proof for Lots 3, 4, and 5, and the SE. 4 of the NW. of Sec. 6, T. 30 N., R. 22 W., Valentine land district, Nebraska.

The record shows that on November 28, 1883, Bailey filed his soldier's homestead declaratory statement for said land, and on April 22, 1884, made homestead entry No. 1344 of the same.

On February 8, 1884, Townsend filed his pre-emption declaratory statement No. 770 for said tracts, alleging settlement thereon October 31, 1883. On May 19, 1884, Bailey filed his affidavit of contest against said filing, alleging that Townsend commenced settlement and improvement upon said land on or about June 1, 1883; that he did not make said settlement in good faith, but for the purpose of speculation, and that he failed to file his pre-emption declaratory statement until after the expiration of three months from his date of settlement, and until after the filing of the soldier's homestead declaratory statement by said Bailey.

Notice issued charging Townsend with "abandoning his pre-emption filing and failing to file in time," and July 1st was fixed for the hearing of the case.

On May 20, 1884, Townsend gave due notice of his intention to make final proof before the county judge of Brown County, in said State, on July 2d ensuing. Bailey was not specially cited in said notice, and did not appear at the time said proof was made, but filed his protest against the same, alleging substantially the same reasons as those contained in his contest affidavit. The register made the following indorsement

upon the final proof: "This tract being under contest, approval is withheld till contest is decided." Townsend did not appear at said contest, alleging as a reason that he could not make his final proof at one place and attend the contest at another place a considerable distance away. At the hearing counsel for Townsend filed a plea denying that he had abandoned his pre-emption filing, or failed to file in time; and also alleging that the notice does not show that contestant is an adverse claimant. After the hearing had commenced, counsel for Townsend made a motion to dismiss said contest, which motion was overruled by the district land officers.

Upon the testimony submitted the register and receiver rendered their joint opinion that Townsend failed to file his declaratory statement within the time required by law; that the evidence fails to show the good faith of Townsend, and that his filing should be canceled. On appeal your office, without passing specially upon the alleged irreg ularities in the record, affirmed the decision of the local land officers.

It is clear that said contest was commenced prematurely. Bailey should have waited until Townsend gave notice of his intention to make his final proof. Nichols v. Benoit (2 L. D. 583); Percival v. Doheney (4 L. D., 134). Although the contest was prematurely commenced, yet, having been allowed and the day set for hearing, Townsend should not have been permitted to make his final proof until said contest had been determined. Stroud v. De Wolf (4 L. D., 394).

The published notice failed to cite Townsend to appear, and the notice of contest failed to charge any bad faith on the part of Townsend. Townsend was only called upon to answer the charge of abandonment and a failure to file in time, and his counsel strenuously objected to the evidence outside of the charges contained in the contest notice. It has been held by this Department that the evidence must follow the charges as laid in the notice. Shinnes v. Bates (4 L. D., 424). Townsend offered affidavits tending to show that he sent his declaratory statement to the local land office and the same was received prior to the expiration of the three months from the date of his alleged settlement.

While these affidavits could not properly be considered by the local land officers as evidence, yet, in view of the many irregularities and errors as shown in the record, I am of the opinion that the final proof of Townsend should be rejected, the contest of Bailey should be dismissed without prejudice, and Townsend should be permitted to make new proof after giving due notice, citing Bailey specially. (See instructions, November 25, 1884, 3 L. D., 196.)

The decision of your office is modified accordingly.

2278 DEC- -12

FINAL PROOF-CROSS-EXAMINATION OF WITNESSES.

CIRCULAR.

Commissioner Sparks to registers and receivers, September 23, 1886.

Your attention is called to the circular of December 15, 1885 (4 L. D., 297), regarding cross-examination of claimants and witnesses in final proofs. Claimants and witnesses must be cross examined in all cases of final proof; and you are instructed to reject all proofs not accom panied with the required cross-examination.

The paper containing the record of the cross-examination for transmission to this office must show that the statements therein have been sworn to and subscribed by the witnesses, by their signatures appearing thereon, and the jurats of the officers administering the oaths, the same as in the formal proofs made on the regular printed blanks.

Approved:

L. Q. C. LAMAR,

Secretary.

BOUNTY LAND WARRANTS.

To whom it may concern:

CIRCULAR.

Washington, D. C., September 24, 1886.

The practice of examining and certifying military bounty land warrants, in advance of offer to locate, as free from objections on the records, and the assignments thereof as sufficient in form, is hereby discontinued. There is no such duty imposed on the Commissioner by law, but it is a matter entirely within his discretion, (Secretary Thompson's decision of August 9, 1858, Lester, vol. 1, p. 619), and he finds that time cannot be spared from imperative duties for this gratuitous business. In future, he will pass upon the status of bounty land warrants, and the assignments thereof, as he does upon other official matters, not in advance, but when they come regularly before him for action, in dispos ing of warrant locations reported by the district land officers, or appeals by interested parties from decisions of the same officers, refusing to permit locations.

Warrants now on file, or any that may hereafter be filed, for certification, will be returned to the parties forwarding them, with information of the foregoing action.

WM. A. J. SPARKS,
Commissioner.

Approved:

L. Q. C. LAMAR,

Secretary.

COMMUTED HOMESTEAD ENTRY-RESIDENCE.

WILLIAM M. PENROSE.

To acquire residence under the homestead law the former residence must be abandoned, and such change can be effected only by the concurrent act and intention of the settler.

Secretary Lamar to Commissioner Sparks, September 28, 1886.

On August 27, 1883, William A. Penrose made homestead entry for the SW. of Sec. 4, T. 117 N., R. 68 W., Huron, Dakota, and on June 10, 1884, commuted the same to cash entry. His proof shows that for many years prior to making entry he resided in Illinois; that his family consists of his wife and two children; that he left his family in Illinoishis wife being employed in "keeping boarders"-went to Dakota, made entry, built a house eight by twelve feet, dug a well, and broke eight acres of land; that he "resided" on the tract from March 12, 1883, to Septem. ber 13th following; that he then returned to Illinois, where he remained during the winter; that he again went to Dakota in March, 1884, visited the land for a short time, sowed five acres in oats, went away and returned in June, when he made final proof and paid for the land. As shown by supplemental affidavits required by your office, he then returned to Illinois, where he is now living with his family, and professes no intention of returning to his claim. He alleges that poverty prevented him from bringing his family to the land, and contends that his "residence" as above described was a full compliance with the law in that particular. Your office held for cancellation his cash entry, and allowed the homestead entry to stand subject to proof of compliance with law. On a careful examination of the case I am satisfied that as a matter of fact, his poverty did not prevent his compliance with the law. That defense is inconsistent with the facts in the case. His claim that he has complied with the law is untenable. To acquire residence on a tract of land under the homestead law the former residence must be abandoned. Such change can be effected only when the act of the settler and his intention to make such change unite. In the present case the alleged residence of claimant is wanting in both essential particulars. His residence was never changed from Illinois and I find as a fact that he never had an intention of changing it. The fact that his family remained during all this time at their home in Illinois is conclusive of that question, under the circumstances of this case. Finally I am of opinion that claimant has attempted to acquire title to a portion of the public lands, without compliance with law. His entries will therefore be canceled. Said decision is accordingly modified.

HOMESTEAD-TOWNSITE SETTLEMENT.

MATTHIESSEN & WARD v. WILLIAMS. (On Review.)

An informal townsite settlement prior to survey, and subsequently abandoned, does not reserve the land from homestead entry.

Secretary Lamar to Commissioner Sparks, September 28, 1886. On the 17th of July, 1884, my immediate predecessor rendered a decision affirming that of your office, dated February 1st preceding, in the case of Franz O. Matthiessen and Lebbeus B. Ward v. Joseph T. Williams, involving the NE. of NW. 4, NW. † of NE. 4, and S. § of NE. 4, Sec. 33, T. 8 N., R. 50 E., Eureka, Nevada. (10 C. L. O., 356, and 3 L. D., 282). This case relates to the contest of Williams's homestead entry No. 69 of the land above described; and the material facts therein so far as necessary for the purpose of this review are as follows: Williams made his homestead entry December 2, 1875, and submitted his final proof October 24, 1882, at which last date contest was initiated against him by one Richard Gluyas. as attorney in fact for Matthiessen and Ward, who claimed certain rights and interests in the property in controversy, more particularly described hereafter. Four grounds were set up as reasons why the entry of Williams should be canceled.

First, That Williams had, contrary to law, conveyed, or agreed to convey a portion of the land to one M. M. Donahue.

Second, That he had conveyed, or agreed to convey, a portion of said land to one Lafayette Joslyn.

Third, That the land was not, on December 2, 1875, when Williams made his entry, subject to such entry, by reason of the fact that on that day the land was within the limits of and formed the site of a town.

Fourth, That said land was, on December 2, 1875, actually settled and occupied for the puposes of trade and business, and therefore not subject to entry under the homestead law.

These contestants and Joslyn also had previously applied to purchase the land under the second section of the act of June 15, 1880.

Hearing was had, testimony taken, and the judgment of the local office, of your office, and also of this Department was adverse to the contestants upon all the points raised in the contest, the said applications to purchase under the act of June 15, 1880, were likewise denied, and the land was awarded to Williams under his homestead entry by my predecessor's said decision of July 17, 1884.

A motion for review and reconsideration having been filed by the contestants, my predecessor, on December 6, 1884, rendered a decision in the words following, to wit:

"I have before me a motion for the review of my decision in the case of Matthiessen and Ward v. Williams, and for a rehearing on allega. tions of fraud in respect of Williams's entry.

"The motion for review I for the present do not discuss. The motion for rehearing is based on alleged newly discovered evidence, which contestee contends is not newly discovered and hence, not ground for a re