withdrew all objections to Brady's application; that said Cady, at 9:30 P. M., on November 28, 1887, through his agent, offered to file an adverse claim, alleging conflict with the Ground Hog lode, owned by him.

It appears that Sunday was the sixtieth day after the first day of publication, and your office held, upon the authority of Miner v. Marriott et al. (2 L. D., 709), and the Great Western Lode Claim (5 L. D., 510), that, "the legal period of publication during which an adverse claim should have been filed, expired November 27, 1887," and that, if Cady delayed until the last day and that day was Sunday, he could not look to your office for relief, as there was no law allowing your office to extend the time prescribed by law for filing adverse claims.

The record also, shows that said Cady, on December 27, 1887, commenced suit in support of his adverse claim.

It must be conceded that, if said protest and adverse claim had been presented on November 27, 1887, it would have been in time. But that day was Sunday, and the adverse claim was presented the following day.

By section 1630 of the General Statutes of Colorado (1883, p. 538), is provided (inter alia), that certain days therein specified shall—

it

be treated and considered as is the first day of the week, commonly called Sunday: Provided, That in case any of the said holidays shall fall upon a Sunday, then the Monday following shall be considered as the said holiday, and all notes, bills, drafts, checks, or other evidence of indebtedness, falling due or maturing on either of said days, shall be deemed as due or having matured on the day previous to the first of said days; and in case the return or adjourned day in any suit, matter or hearing before any courts, shall come on any day before mentioned, such suit, matter or proceeding, commenced or adjourned as aforesaid, shall not by reason of coming on any such day, abate, but the same shall stand continued on the next succeeding day, at the same time and place, unless the next day shall be the first day of the week, when in such case, the same shall stand continued to the day next succeeding at the same time and place.

In the case of Salter v. Burt (20 Wendell, 205), the Supreme Court of New York decided, that," when the day of performance of contracts, other than instruments upon which days of grace are allowed, falls on Sunday, that day is not counted and compliance with the stipulations of the contract on the next day is deemed in law a performance." See also case of George Leinen (8 L. D., 233).

In view therefore of the fact that suit has been commenced in support of said adverse claim, and also that the protest and adverse claim were offered on Monday following the Sunday which was the sixtieth day after the first day of publication, I am of the opinion that the protest and adverse claims were offered in time, and should have been accepted by the local land officers.

The papers should be returned to the local officers, with instructions to accept and file said adverse claim, as of the date when offered, and to suspend the proceedings in their office, until the final determination of said suit, as required by section 2326, of the U. S. Revised Statutes. The decision of your office is modified accordingly.

DESERT LAND ENTRY-FINAL PROOF.

OSCAR CROMWELL.

While the Land Department has no authority to extend the time within which proof of reclamation should be made, it will, in the absence of an adverse claim, give an equitable consideration to final proof submitted after the expiration of the statutory period, if the delay is satisfactorily explained.

First Assistant Secretary Chandler to Commissioner Stockslager, April 25, 1889.

In the matter of the application of Oscar Cromwell for an extension of the time within which to reclaim from its alleged desert condition section 26 T. 40 N., R. 1 W., Mount Diablo meridian, California, appealed from the decision of your office dated May 1, 1888, denying said application, reference is made to said decision for a statement of the facts in the case.

The act of March 3, 1877 "to provide for the sale of desert lands in certain States and Territories" (19 Stat. 377), allows a party who has filed his declaration of intention to reclaim a tract of desert land, not exceeding one section, three years within which to prove that he has reclaimed such tract from its desert condition. The Department concurs with your office in the opinion that you have no authority, on the application of a party intending to reclaim and enter, to extend this period. Counsel for the appellant contend that this ruling is not in harmony with the spirit of the act. In this he is in error. The spirit of the act can only be gathered from its terms. It is liberal in its character, giving three years within which to comply with its provisions. Fixing the time within which the entry shall be made, this Department has no power in advance to enlarge upon its conditions by extending the time beyond the statutory period for making the entry. To do so would be a sort of remedial departmental legislation, which would override and ignore the will and intent of Congress as expressed in the act, and, carried to its legitimate results, would turn this Department into a legislative body to provide for any emergency, disregarding positive enactment. Such a theory is not tenable and can not be upheld, and while this Department can not legislate, it can in the interests of equitable principles, as between itself and the entryman, if the entry is not completed in statutory time, waive a strict literal compliance with the act, and, in the absence of valid adverse claims, parties who labored under difficulties similar to those alleged in this case have been allowed to make final proof and entry after the expiration of said statutory period. Alexander Toponce (4 L. D., 261); Owen W. Downey (6 ib., 23); Riley Garrett (7 ib., 79).

Should appellant hereafter make final proof showing full compliance with the desert land law-excepting only as to the time within which proof of reclamation should have been made-and give a satisfactory

excuse and explanation of the delay in making such proof, and that he used diligence in doing so, his case will then be duly considered by the Land Department.

The decision of your office is affirmed.

PRE-EMPTION ENTRY-EQUITABLE ADJUDICATION.

MELISSA J. CUNNINGHAM.

A pre-emption entry may be submitted to the Board of Equitable Adjudication where it was allowed on final proof submitted by a married woman, who, prior to marriage had complied with all the requirements of the law and tendered her final proof, but on the erroneous rejection thereof, re-offered the same, after marriage, in accordance with said decision of the local officers.

The filing of a declaratory statement is not made a condition precedent to the exercise of the pre-emptive right, but is merely a protection against subsequent settlers.

First Assistant Secretary Chandler to Commissioner Stockslager, April 25, 1889.

January 9, 1888, your office held for cancellation the pre-emption cash entry number 825, made April 15, 1885, by Melissa J. Cunningham (born Glover) for lots 1 and 2, and the S. of the NE. of section 4, T. 30, R. 25 W., Valentine, Nebraska, for the reason that the claim ant having been a married woman at date of final proof was not a qualified pre-emptor.

At first blush it might appear that you are correct and have followed the precedent of the Department and the statute itself, but upon a mature deliberation I am constrained to believe that you are in error in your conclusion based upon the facts of this case, and that the opinion herein expressed is in consonance with the spirit of the act and the equitable rulings of this Department.

In considering this case let us bear in mind the necessary qualifications and requirements of a pre-emptor. The statute section (2259) provides for three classes of persons who may avail themselves of the pre-emption laws, viz:

1st, The head of a family;

2d, Widow; and

3d, Single person over twenty-one years of age.

Each claimant must be a citizen of the United States or have filed a declaration of intention to become such; shall make settlement in person on the public lands subject to pre-emption; shall inhabit and improve the same and shall have or erect a dwelling thereon.

When all these conditions are present subject to the rules of the Department respecting settlement, a pre-emptive right exists.

Section 2259 is silent as to how long these conditions shall last as to these three classes of persons to entitle them to the benefits thereof, 16184-VOL S--28

but section 2263 gives the Secretary of the Interior the power to prescribe rules and regulations with reference thereto. Following the rules thus prescribed and the construction placed upon the statute by the Department, we find:

1st, Six months residence is required as evidence of good faith.

2d, Improvements sufficient in value to satisfy the Department that the claimant's intent is to honestly avail himself of the bounty of the government.

3d, That the condition which either of these classes assume at time of settlement shall continue until after the claimant perfects his entry, hence if Mrs. Cunningham at the time of her entry was an incompetent entryman, she was made so not by statute but by a construction and rule of the Department, which being in constraint of marriage the law abhors, and courts do not favor, so that if the construction placed upon the statute is correct, it ought not to be extended beyond the period when the entryman is, as a matter of law, entitled to avail himself of the benefits of the act. It is conceded that she was a competent entryman of the third class above mentioned down to the time of her marriage, and what do we find the undisputed facts with reference to her qualifications?

At the time her declaratory statement was filed for her by her brotherin-law, March 1884, she was a single person; (a) over 21 years of age; (b) a citizen of the United States; (c) she made settlement in person April 23, 1884; (d) upon lots 1 and 2 and the S. of the NE. † of section 4, T. 30, R. 25, a tract of public land subject to pre-emption; (e) that she inhabited and improved the same; (f) and had erected a dwelling house thereon; (g) and lived on that land until March 3, 1885, for a longer period than the six months required by the Department as evidence of good faith.

Here we find all the qualifications of a pre-emptor. Having all the qualifications as such, she went to the local land office at Valentine, Nebraska, to complete her entry. While her final proof was being taken she was asked if she had signed a certain paper (declaratory statement) which was shown her. In reply thereto, she said: "I did not sign it; it is my brother-in-law's handwriting." Thereupon the local officers informed her that she must make a new application and live upon the land six months before making final proof. In this the local office was in error. "The filing of a declaratory statement is not made a condition precedent to the exercise of the pre-emptive right, but is merely a protection against subsequent settlers." Ellen Barker (4 L. D., 514). At this time she had literally fulfilled every requirement of the statute and should have been permitted to complete her entry. She had a legal right to demand it. To have refused would have been error. Now at that time, having the legal right to perfect her entry, and being prevented from so doing by misleading and erroneous advice given her

by the officers of the government in whom she confided, shall she, in equity as between herself and the government, be prejudiced by her subsequent action?

These acts which, it is claimed, disqualify her, are predicated upon this state of facts.

When told she must make new application she says:

"I told them I was to be married next week; then they held a consultation after which they told me there was no law in the United States to hinder my marriage; that if I made new application and re-advertised I could be married, return after my marriage and give final proof."

She paid the fee required for taking the rejected testimony (which would imply that she had already made her final proof), paid the fee again required for pre-emption filing and paid for advertising the second time.

April 15, 1885, she returned to the local office, made proof which was accepted and final certificate issued which you hold for cancellation for the reasons heretofore suggested, notwithstanding she asks that her case may be submitted to the Board of Equitable Adjudication for its consideration.

It strikes me, from the facts in this case, that the statute has not been violated to the extent that Mrs. Cunningham shall not merit recognition at the hands of the Department. The claimant remained in the condition required thereby for that period of time which entitled her to enter this tract and undoubtedly would have continued in that state for the time erroneously required by the local officers had they not misled her.

The plainest principles of natural justice ought to obtain in a case of this character. It is a familiar principle of equity jurisprudence that equity considers as done that which should have been done. Applying that principle to this case, Mrs. Cunningham's entry should have been perfected and allowed March 3, 1885.

Suppose Mrs. Cunningham had perfected her entry at that time and had married the next day and when her entry came up for consideration it had been rejected for some irregularity in perfecting it, such as defective notice or proof, etc., and the entry held for cancellation unless new notice should be given or new proof furnished, would she notwithstanding her marriage be permitted to perfect her entry? Most certainly. In such case her rights are to be determined by her status at the date of entry. Her marriage neither detracts from nor adds to her qualifications at that date.

In equity what is the difference between the two cases? I am not unmindful of the provisions of the statute nor the rules and decisions of the Department construing the same, wherein it is held, by a long line of decisions, that a single woman seeking to avail herself of the benefit of the pre-emption law must remain in that condition from the incep