requirements of the homestead law, and has received his receipt for the payment of the land office fees.

Such view of, and practice under, the law would certainly forbid the boxing of trees on homestead entries for turpentine purposes, and the working of turpentine orchards thereon. This Department holds that the boxing of trees on the public lands for turpentine purposes is an offense indictable under section 2461 Revised Statutes of the United States, and in this view is sustained by the ruling of Judge Hill, district judge for the Southern District of Mississippi, in the case of G. S. Leatherberry, (27 Fed. Rep., No. 8, p. 606). As stated by Judge Hill, the object and purpose of this section is to protect the public timber. The result of boxing pine trees for turpentine purposes is to destroy the timber as effectually as though it were severed from the stump, the only difference being that the boxing process is slower. To hold that thus boxing the trees is not an offense under this section would be going a great way toward defeating the purpose had in view in its enactment. Destroying the trees by boxing is equivalent to cutting them down at once; and using the crude gum for the manufacture of turpentine and resin is employing the timber for a purpose other than for the use of the Navy of the United States.

I cannot see that the method adopted by Wooten to secure the crude gum from the trees upon these homesteads relieved him in any sense of the responsibility attaching to the boxing of the trees or the use of their product. Where he did not box the trees himself or hire some one else to do it for him, he procured it to be done by the entrymen by reason of the agreement made with them; and in either case, whether the gum came from the trees boxed by the homesteader or himself, he entered upon the lands to gather the product of the boxing.

Special attention is directed to the letter of Agent Griffin of June 4th, 1885, which seems to show very clearly that the result of boxing pine trees for turpentine is to destroy them as certainly as though they were cut down, "the only difference being that the boxed tree has a few years to linger while the turpentine gatherer dips its dying flow of sap."

In view of the facts set forth in this case I am of opinion that Wooten is liable criminally for boxing or causing to be boxed the trees involved in the trespass, whether on the homestead entries or vacant public land, as well as civilly for the injury done by the boxing, and for the turpentine and resin manufactured from the gum. I have the honor, therefore, to request that you will cause the papers herewith to be referred to the proper United States attorney, with directions to institute criminal suit against Wooten for his violation of law in connection with the boxing of the trees and the appropriation of the gum, and civil suit against him to recover the manufactured value of the turpentine and resin, and for the amount of the injury done to the trees by the

boxing, as recommended by the Commissioner, if an examination of the facts in the case shall seem to warrant such action and it shall be deemed to be for the interest of the public service.

PRACTICE-CERTIORARI-APPEAL.

MURDOCK v. HIGGASON.

The application for certiorari herein, being in effect an appeal, is treated as such, having been filed within the proper time therefor.

Acting Secretary Muldrow to Commissioner Sparks, January 31, 1887.

Oscar Higgason has filed in the Department an application for certiorari in the above stated case, alleging error in the decision of the Assistant Commissioner of December 9, 1886.

It appears from the application, which is verified by the record, that on July 8, 1886, you affirmed the decision of the local officers in favor of the legality of Higgason's pre-emption settlement and filing, with the right to show compliance with the law as to residence and cultivation.

October 5, 1886, a motion was made by Murdock for a reconsideration of said decision upon ex parte testimony filed before you alleging fraud and illegality in Higgason's settlement and filing.

November 1, 1886, Higgason filed a motion for a hearing in said case to enable him to introduce evidence to disprove the allegation in said motion for reconsideration, which was refused, and on December 9, 1886, the Assistant Commissioner reconsidered said decision of July 8, and ordered the cancellation of Higgason's filing.

It appearing that the limitation as to appeal has not expired, and also that the petition termed an application for certiorari is in effect an ap peal, I think it may without impropriety be termed an appeal and so treated, if he so elect.

HOMESTEAD—COMMUTATION-RESIDENCE.

OSCAR T. ROBERTS.

The right acquired by the original entry is lost, if the entry made on commutation is canceled for the reason that a bona fide residence has not been established.

Acting Secretary Muldrow to Commissioner Sparks, February 1, 1887.

This record presents the appeal of Oscar T. Roberts from the decisions of your office, dated June 22 and August 22, 1885, holding for cancellation his commutation cash entry No. 717 of the NW. 4 of Sec. 18, T. 139 N., R. 81 W., made December 18, 1884, at the Bismarck land office, in Dakota Territory. With the final proof appears the explanatory

affidavit of the entryman showing that he was an unmarried man, and in limited financial circumstances; that on the 10th day of June, 1884, he established an actual residence on the land in a house, which he had previously erected thereon; that since that date he has maintained a residence by going upon the land as often as once every two weeks, remaining sometimes over night, and at other times a day and a night, looking after his household goods and superintending his improvements thereon; that during this time he has been engaged in clerical work at Mandan in said Territory, about four and one-half. miles distant from said land; that since making said entry and establishing his residence upon said land, as aforesaid, he has always claimed the same as his home to the exclusion of one elsewhere; that he has expended his wages in improving said land, and the improvements have been made thereon to the full extent of his means; that the house built upon said tract has a good, substantial frame, double-boarded, ceiled inside and lined with building paper, and is a good, comfortable residence, furnished with all necessary household furniture; that he has continued to reside on said tract all that was possible for him to do under the circumstances; that he has acted in perfect good faith, and is trying to secure said land for a home and not for the purpose of speculation.

Upon the proof offered the local land officers recived payment and issued cash certificate for said land. On June 22, 1885, your office suspended said cash entry, for the reason that the testimony concerning the entryman's absences was indefinite, and the local land officers were directed to notify him "that a supplemental affidavit, duly corroborated, specifying the date and duration, as well as the cause of each absence, is required." Thereupon, Roberts filed a supplemental affidavit as directed, repeated substantially his former statements, and also alleged that he had expended some four hundred dollars in improving said land; that having kept no memorandum, he was unable to state the exact dates or duration of his several absences from the land; that his employment required him to spend the greater portion of his time away from the land, but that he went to the land at least once in two weeks during the entire time prior to making proof and payment for the same; that he has no intention of abandoning said land and still continues to keep up his improvements thereon; and that if the proofs already submitted are not considered sufficient to sustain his entry, then he must lose the land, as he is unable to do anything more.

On August 22, 1885, your office considered said supplemental affidavit, and held that the explanation contained therein was not sufficient to satisfy the requirements of your office, and that said cash entry must be held for cancellation for want of proof showing a "bona fide residence" on said tract. Said decision further states "that the rights acquired by his homestead entry still remain intact, the object of this present action being only to insist that before obtaining title to the land, he shall establish an actual residence thereon."

It is clear that if the entryman has never established "bona fide residence" on said tract and his entry is for that reason canceled, then the homestead entry must also be canceled. Greenwood v. Peters (4 L. D., 237). But the decision appealed from states that "it appears that he (Roberts) made his entry December 10, 1883, but established residence and broke ten acres," thus conceding that the entryman established his residence on the land. There is no concealment by the entrymau in his final proof and no evidence of bad faith on his part. Under the circumstances disclosed by the record, the entryman should be allowed to make new proof, showing compliance with the law as to residence, cultiva tion, etc., within a reasonable time. His cash entry will remain suspended, until such proof is furnished.

The decision appealed from is modified accordingly.

HOMESTEAD AFFIDAVIT–VOIDABLE ENTRY.

ROE v. SCHANG.

A homestead entry in which the preliminary affidavit was not made before the clerk of the court in the county where the land is situated, but before the clerk of the court in an adjoining county, is voidable only, and the defect may be cured by proper supplemental affidavit.

Permission to file such affidavit is accorded the defendant herein, as the sufficiency of his original affidavit was not an issue in the contest and his good faith is apparent.

Acting Secretary Muldrow to Commissioner Sparks, February 5, 1887.

I have considered the application of Nelson C. Roe for a review of departmental decision, rendered November 13, 1886, in the case of Nelson C. Roe v. Quirin Schang, in which the decision of your office affirming the action of the local land officers in dismissing Roe's contest against Schang's homestead entry No. 5727 of the S. of the NE. of Sec. 8, T. 6 N. R. 66 W., made June 14, 1884, at the Denver land office, in the State of Colorado, was affirmed.

The record shows that Roe initiated a contest against said entry, notice was issued charging abandonment, and testimony was taken before the proper officer on February 19, 1885. Upon the evidence submitted the register and receiver found that the claimant had acted in good faith; that the allegations of the contestant were not sustained, and that the contest should be dismissed. On appeal, your office, on May 26, 1885, affirmed the action of the local land officers and dismissed said contest. Thereupon, the contestant appealed to this Department and the decision of your office was affirmed.

It does not appear that a single issue is raised in this motion that was not presented to the Department when said decision was rendered.

The applicant has appended to his motion certain letters alleged to have been written by the defendant, but it does not appear that they relate to the land in controversy.

The affidavit of contest charged abandonment, change of residence for more than six months and failure to settle and cultivate as required by law, and the notice issued summoned the defendant to answer to the charge of abandonment. There was evidence submitted relative to said charges upon both sides, and since the testimony is conflicting and the decisions of the local land officers, your office, and the Department all sustain the good faith of the entryman, and hold that the contest. ant has failed to sustain the charges made against said entry, the decision, so far as relates to these issues, must remain unchanged. The motion, however, presents another serious question, which deserves consideration.

The third ground upon which said motion is based is as follows: "It was error not to order the entry canceled, on the ground that it was sworn to before the clerk of the court in and for Larimer county, when in truth and in fact said land is in Weld county."

The affidavit shows that it was executed before the clerk of the district court for Larimer county, Colorado, and it appears that the land in controversy is in the county of Weld.

Section 2294 of the Revised Statutes of the United States provides that, "In any case in which the applicant for the benefit of the homestead, and whose family or some member thereof is residing on the land which he desires to enter, and upon which a bona fide improvement and settlement have been made, is prevented by reason of distance, bodily infirmity, or other good cause, from personal attendance at the district land office, it may be lawful for him to make the affidavit required by law before the clerk of the court for the county in which the applicant is an actual resident, and to transmit the same with the fee and commissions to the register and receiver."

In the case at bar, it is not claimed by Schang that any member of his family, other than himself, was residing on said land, hence a strict compliance with said section necessitates the making of the affidavit before the clerk of the court of the county where said land is situated. Said entry is not, however, to be considered void, but rather voidable, capable of being perfected by a supplemental affidavit made before the proper officer. The insufficiency of said affidavit was not put in issue in said contest, nor was it alleged in the appeals from the local land officers or your office. This Department unquestionably has the power to cancel an entry for good cause shown on appeal, even when the cause is not alleged in the affidavit and notice of contest. Smith v. Brandes (2 L. D., 95); Condon v. Arnold (ibid., 96); Murphy v. Longley et al. (4 L. D., 239). But it will be observed that such action is based upon the theory that in all contests the government is a party in interest, and whenever the evidence shows that a party is seeking to acquire title to