adverse right intervened, I can see no objection to her being permitted to make entry of the tract nunc pro tunc, by virtue of her compliance with the legal requirements of the homestead law, subject, however, to confirmation by the Board of Equitable Adjudication.

CONTEST-DECISIONS.

LEIGHTNER v. HODGES.

Whether testimony is taken before the local officers or another authorized officer, the decision must be based on the facts shown by the official records as well as on those disclosed by the testimony.

Commissioner McFarland to register and receiver, Gainesville, Florida, November 20, 1884.

On June 22, 1884, a hearing was ordered in the case of John D. Leightner v. Stapleton Hodges, involving the SE. of NW. 4, and SW. † of NE. 4, of Sec. 30, T. 14 S., R. 22 E., and hearing set before you on Dec. 8, 1884.

*

All cases involve the records of the local office. In your examination of any case, whether the oral testimony is taken before you or before another authorized officer, it is of course a material part of your duty to consult your records, and you must make up your judgment upon the facts as shown by the record, together with facts brought out in the testimony taken for the purposes of the hearing. You are not expected nor would you be authorized to ignore facts of record, because testimony is taken before another officer.

CONTEST-DEPOSITS; COSTS.

ANNA M. LIVINGSTON.

Both parties to a contest may not be required to deposit for the entire contest; the costs of transcribing a cross-examination must be paid by the party making it; vexatious and irrelevant cross-examinations should be promptly arrested by the local officers.

Commissioner McFarland to register and receiver, Tucson, Arizona, November 24, 1884.

I am in receipt of your letter of the 31st ult., transmitting the appeal of Anna M. Livingston from your ruling in the matter of deposits to secure costs in contest cases.

It appears that it is your practice to require parties to a contest to each deposit the estimated amount of costs, thus making a double deposit, and that the present appeal is taken with a view of obtaining the instructious of this office relative to said practice. It further appears that in 7747 LAND--13

the case upon which this question has arisen you demanded a deposit of $250 from each party, and subsequently an additional deposit of $100 more from each, making a total of $700 for the costs of a hearing to ascertain the facts in the matter of the alleged settlement, residence, and improvement of a pre-emptor. In respect to the extraordinary expense entailed in this case you state that you urged the attorneys for both parties, and especially the attorney for Mrs. Livingston, to confine the examination to relevant matters, but that the latter disregarded your suggestions, encouraged his witnesses to testify in detail to facts having no bearing upon the case, apparently for the purpose of involving the contestee in expense, and that the latter retaliated by conducting his cross-examinations in much the same manner, each party meanwhile boasting that he had the means to prolong the contest indefinitely. You further state that this contest continued for a whole month to the interruption of the general business of your office. You refer to this course of proceeding as justifying your ruling. It does not appear however that your ruling had the effect of terminating the protracted litigation, which only ceased when the means of one of the parties became exhausted.

You are instructed that you have no authority to require double de posits in any case. You may require contestants to deposit for a reasonable estimate of preliminary costs. Previous to taking testimony you may require both parties to deposit for a reasonable estimate of the cost (due by them respectively) of reducing the same to writing, and if the hearing is protracted you may require additional deposits from either or both as may be necessary. But excessive, unreasonable, or unnecessary deposits should never be required at any stage of proceedings. You may not, in any case, require both parties to deposit for the whole costs.

The matter of unnecessarily protracted hearings and the vexatious accumulation of costs, is one within the scope of your authority to prevent, and it is your duty, under the decisions and instructions of this office and Department to put a stop to such proceedings. "When it is clear that the line of cross-examination, or the testimony offered, is intended to vex, or delay, or cause unnecessary expense, . the local officers may, and they should, peremptorily end it;" (Foster v. Breen, 2 L. D., 232). Amended Rule of Practice 35 provides that

*RULE 35, AS AMENDED.

1. In contested cases and hearings ordered by the Commissioner of the General Land Office, testimony may be taken near the land in controversy before a United States commissioner, or other officer authorized to administer oaths, at a time and place to be fixed by the register and receiver and stated in the notice of hearing.

2. Officers taking testimony under the foregoing rule will be governed by the rules applicable to trials before registers and receivers; (see Rules 36 to 42, inclusive.)

3. Testimony so taken must be certified to, sealed up, and transmitted by mail or express to the register and receiver, and the receipt thereof at the local office noted on

"the costs of transcribing cross examination will in all cases be taxed to the party making the cross-examination." This rule should, of itself, be sufficient to bar vexatious proceedings. Under it, neither party can force the other to incur unnecessary expense.

CONTEST-EX PARTE CASES.

INSTRUCTIONS.

Testimony must be taken at time and place fixed in the notice. In ex-parte contest cases testimony taken without notice must not be received or acted upon. Acting Commissioner Harrison to register and receiver, Bismarck, Dakota, November 25, 1884..

I am informed by the report of inspector F. D. Hobbs that in ex-parte contest cases, where parties are cited to appear before you, it is your practice to allow testimony to be taken before a notary public or other officer on a day prior to that set in the notice, and on the day of hearing to accept that evidence, instead of taking testimony on that day according to notice.

You are advised that when testimony is authorized by you to be taken before some other officer than yourselves, the notice must state the time and place fixed for taking the testimony, and the name and official character of the officer who is designated to take it. When notice is

the papers, in the same manner as provided in case of depositions by Rules 29 to 32, inclusive.

4. On the day set for hearing at the local office the register and receiver will examine the testimony taken by the officer designated, and render a decision thereon in the same manner as if the testimony had been taken before themselves; (see Rules 50 to 53, inclusive.)

5. No charge for examining testimony in such cases will be made by the register or receiver.

6. Officers designated to take testimony under this rule will be allowed to charge such fees as are properly authorized by the tariff of fees existing in the local courts of their respective districts, to be taxed in the same or equivalent manner as costs are taxed by registers and receivers under Rules 54 to 58, inclusive.

7. The costs of transcribing cross-examinations will in all cases be taxed to the party making the cross-examination.

8. Where bearings are ordered by the Commissioner of the General Land Office in cases to which the United States is a party, continuances will be granted in accordance with the usual practice in United States cases in the courts, without requiring an affidavit on the part of the government.

9. When an officer designated to take testimony under this rule, or when an officer designated to take depositions under Rule 27, cannot act on the day fixed for taking the testimony or deposition, the testimony or deposition, as the case may be, will be deemed properly taken before any other qualified officer at the same place and time who may be authorized, by the officer originally designated, or by agreement of parties, to act in the place of the officer first named. (Cirenlar of January 3, 1883.)

thus given, you can receive and act upon testimony taken in accordance with such notice, but you cannot receive or act upon testimony taken without notice.

HOMESTEAD; PRE-EMPTION-FINAL PROOF.

INSTRUCTIONS.

When a homesteader or pre-emptor advertises his intention to make proof, the adverse homesteader or pre-emptor of record must always be cited.

Acting Commissioner Harrison to register and receiver, Bismarck, D. T., November 25, 1884.

I am advised that a difference in practice exists at different local offices in respect to notifying adverse claimants, when homestead entrymen advertise their intention to make proof; and that, at your office, when there is an unexpired pre-emption filing for the land claimed by a homesteader, the pre-emption claimant of record is not specially cited in the published notice of homestead final proof.

Your practice is not in accordance with the instructions of this office, which are that adverse claimants of record should always be specially cited, both in homestead and pre-emption notices of intention to make proof. This rule is adopted as a matter of precaution, and the same should be observed by registers and receivers in all cases.

The matter of expired pre-emption filings is regulated by circular of April 2, 1881 (8 C. L. O., 8.)

CHIPPEWA SCRIP-FRAUD; RES JUDICATA.

HENRY T. WELLS.

Recital of facts relative to the origin and issue of Chippewa half-breed scrip, and its location within the Mille Lac reservation.

The case in question was decided in 1873; that the decision was erroneous, or that the Department has since held differently, is immaterial; since there is identity in the thing sued for, in the cause of action, in the persons and parties, and in the quality of the persons, the case is res judicata.

Secretary Teller to Commissioner McFarland, November 26, 1884.

I have considered the several matters referred to in your letter of March 9, 1883, "relative to certain locations made within the Mille Lac (Indian) Reservation, embracing Township 42 of Ranges 25, 26 and 27, and Township 43 of Range 27, N. and W., Minnesota." After stating that on April 18, 1871, fifty-seven pieces of Chippewa half-breed scrip, of eighty acres each, were located within said reservation; that September 1, 1871, at the request of the Commissioner of Indian Affairs, the local officers at Taylor's Falls were directed to give public notice

that all entries and locations in the reservation were illegal and not to allow further disposition of such lands; that January 24, 1872, all the locations and entries referred to were canceled on the records of your office and the local land officers so advised; that in September, 1879, Henry T. Wells, on appeal from the district officers' refusal to allow his application to purchase, submitted papers alleging that in 1872 he filed applications under the act of June 8, 1872 (17 Stat., 340), with the Commissioner appointed for that purpose, setting forth that he was the innocent holder of such scrip, purchased in open market, etc., and that he was entitled to the remedial provisions of the act of 1872, and that no action had been taken on said appeal; you ask, in view of my instructions of August 7, 1882 and February 13, 1883, directing the reinstatement of certain canceled soldiers' additional homestead entries on said lands, whether the said locations of Wells should not also be re-instated on the records in order that all claimants may have a standing before your office to enable them to be heard in defense of their respective claims. You also transmitted at the same time a protest from counsel for Wells against the re-instating of the additional homestead entries on account of the prior claim of Wells.

An answer to your inquiry necessitates a statement of the pertinent facts in the case.

The 7th Section of the treaty of September 30, 1854 (10 Stat., 1109), between the United States and the Chippewa Indians of Lake Superior and the Mississippi, gave to each head of a family or single person over the age of twenty-one years of the mixed bloods, belonging to the Chippewas of Lake Superior, eighty acres of land to be selected by him under the direction of the President, which should be secured to him by patent. In his letter of March 19, 1872, to the Commissioner of Indian Affairs, Secretary Delano directed that, in consequence of supposed frauds in the issue of scrip, issued under the provisions of this 7th Section, it (with a named exception) "be declared illegal, fraudulent and void, and all entries of land made with such scrip and unpatented should be canceled." Congress thereafter (June 8, 1872), apparently in view of this action of the Department, and intending also to protect the rights of bona-fide holders of such scrip, passed the act of that date authorizing the Secretary of the Interior to permit the purchase of lands located with claims arising under said 7th Section at such price per acre as he should deem equitable and just, but not less than $1.25 per acre; "and that owners and holders of such claims in good faith be also permitted to complete their titles under such claims upon compliance with the terms above mentioned; provided, that it shall be shown to the satisfaction of the Secretary of the Interior that said claims are held by innocent parties in good faith, and that the locations made under such claims have been made in good faith and by innocent holders of the same."

This statute, although remedial in character, was evidently intended