The Commissioners, Harper and Lorrain, divided the claims embraced in said report into three general classes, as follows:

First class comprehends such claims as stand confirmed by law. Second class com. prehends such claims as, in the opinion of the register and receiver, ought to be confirmed. Third class comprehends such claims as, in their opinion, can not be confirmed under existing laws.

They then subdivided each class into species. The following were the subdivisions of the first class:

1st. Claims founded on complete titles, granted by the French or Spanish govern.

ments.

2nd. Claims founded on incomplete French or Spanish grants or commissions, warrants, or orders of survey, granted prior to the 20th of December, 1803.

3rd. Claims formerly rejected by the Board of Commissioners for the eastern district of Louisiana, merely because the lands claimed were not inhabited on the 20th of December, 1803.

It is not necessary here to further recite the subdivisions of the classes into species.

The register and receiver in their report placed the Goforth claim in class one, species two, and numbered it 462.

Their entry of the claim was in the following language:

William Goforth claims a tract of land situate in the county of Lafourche, containing fifty arpens front by forty arpens in depth. This claim is founded on an order of survey issued by the proper officer.

In closing their entries under this subdivision or species, they say: We are of the opinion that all the claims included under the second species of the first class are already confirmed by the act of Congress of 12th of April, 1814. (3 Stat., 121.)

In the appendix to their report (page 233, State Papers) they say, after referring generally to the scope of the report that

In classing the claims we thought it proper to subdivide those classes into species for, although we believe that all the claims reported in the first and second classes are, or ought to be, confirmed under existing law's, yet those laws do not confirm them to the same extent, nor demand the same requisites equally in all to entitle claimants to their lands. Hence, for the sake of perspicuity, and to pursue as nearly as possible the different kinds of claims pointed out by the various acts of Congress, we have adopted the preceding arrangement as being, in our judgment, the best mode. Then, referring to the first class, they say:.

Those claims which are found under species first of the first class, being founded on complete grants of former governments, we think are good in themselves on general principles, and therefore require no confirmation by the government of the United States to give them validity.

With respect to the second species of claims in the first class, which are bottomed on incomplete titles, the law at present appears to be this: Every claim to land, supported by an order of survey granted by the proper Spanish officer prior to the first day of October, 1800, in favor of persons residing in Louisiana on that day, and who have fulfilled the conditions attached to their concessions, must be confirmed in their claims without limitation as to quantity; but when all the conditions attached to the the concession have not been fulfilled, yet, if it appears that the land has been actually located and surveyed by a proper officer before the 20th of December, 1803, it must be confirmed to the claimant, to an extent not exceeding one league square, 16184-VOL 8--6

provided the order of survey bears date prior to the 20th of December, 1803, and provided also, that the claimant has not received in his own right a donation grant from the United States in the State of Louisiana.

These principles, we think, are deducible from the acts of Congress passed on the 2nd of March, 1805, and 12th of April, 1814. Although the last mentioned act seems to apply chiefly to claims heretofore acted upon and rejected by the Board of Commissioners, yet we think the same liberal principles in the spirit of the law were intended to apply to claims since entered under the laws extending the time for filing claims, and we have therefore reported on those claims according to this impression. As stated in your office decision, the date of the order of survey was not given by the register and receiver in reporting this case, and there is nothing in the record to show its date. The language of the report is: "This claim is founded on an order of survey issued by the proper officer."

No date of survey is given, nor is there any further information in relation to the claim. Without here quoting from the act of April 12, 1814, (3 Stat., 123), it is sufficient to say that your office is correct in its statement that this claim is not confirmed by said act, and it may be added that appellant does not allege that it is so confirmed.

The contention on appeal is that the claim fell within the purview of the act of May 11, 1820 (3 stat., 573) and therefore that scrip should issue under the provisions of the act of June 2, 1858 (11 Stat., 294).

The first section of the act of 1820 reads as follows:

Be it enacted, etc. That the claims for lands within the eastern district of the State of Louisiana, described by the register and receiver of the said district, in their report to the Commissioner of the General Land Office, bearing date the twentieth day of November, one thousand eight hundred and sixteen, and recommended in said report for confirmation, be, and the same are hereby, confirmed against any claim on the part of the United States.

To be more explicit, the averment of apellant is that the report of the register and receiver made November 20, 1816, as found in Green's Edition, American State Papers, page 222, et seq., contained in effect a recommendation that this claim be confirmed, and that because of this recommendation the first section of the act of 1820 (supra) took hold upon it so as to bring it within the provisions of the act of 1858.

In this connection reference may be made, by way of recital to the statement of fact contained in your office decision, that "Under date of January 31, 1879, your (the surveyor-general's) office prepared in satis faction of this unlocated claim, certificates of location numbered 432 A to 432 F, five for three hundred and twenty acres, and one for one hundred and one acres and forty hundredths of an acre, in all 1701.40 acres, the equivalent of 2000 arpens.

On the face of said scrip the act of Congress approved May 11, 1820, entitled 'An act supplementary to the several acts for the adjustment of land claims in the State of Louisiana,' (3 Stat., 573) is given as the act confirming this claim."

After reference to the fact that the act of 1820 confirmed only such claims as were recommended by the register and receiver for confirma

tion, your office decision holds in substance, that the report of said officers, made November 20, 1816, did not contain anything which could properly be construed as a recommendation that this claim be confirmed; that said report in so far as it affected this claim was an expression of judgment by them that it was already confirmed; that such judgment was only an expression of opinion as to the status of the claim and did not deal with its merits.

Counsel for appellant urge that your office did not properly construe the report of the register and receiver; that said report was in effect a recommendation for confirmation of this and similar claims in case it should be held that they were not confirmed by the act of 1814; that because of said recommendation as above, this claim was confirmed by the act of 1820, and that therefor appellant is entitled to scrip under the act of 1858.

If appellant is correct in his contention that the claim was confirmed by the act of 1820, then it seems clear that it comes within the purview of section three of the act of June 2, 1858 (11 Stat., 294), which provides, among other things,

That in all cases of confirmation by this act, or where any private land claim has been confirmed by Congress, and the same in whole or in part, has not been located or satisfied, either prior to such confirmation, or for any reason whatsoever, other than a discovery of fraud in such claim subsequent to such confirmation, it shall be the duty of the surveyor-general of the district in which such claim was situated, upon satisfactory proof that such claim has been so confirmed, and that the same, in whole or in part, remains unsatisfied, to issue to the claimant, or his legal representatives, a certificate of location for a quantity of land equal to that so confirmed and unsatisfied, etc.

The sole question in this case, then, is: Had this claim been confirmed by Congress so as to bring it within the above provision of law? Did the register and receiver in their report of November 20, 1816, recommend the confirmation of the claim and thereby bring it within the provisions of the confirmatory act of 1820? The classification made by those officers of the claims to which their report relates has already been referred to and described herein, and the fact has been noted that the claim under consideration was by them placed under the second species of the first class, the claims in which class they say "stand confirmed by law."

Whatever doubts might arise because of certain ambiguities which appear in the report made by the register and receiver in 1816, seem to have been solved by the supreme court of the United States, in a decis ion rendered in 1850 in the case of Blanc v. Lafayette (11 How., 104). That case involved a claim embraced in the same report of the register and receiver, in which that here under consideration is found. Not only is it in the same report, but it was by the officers named placed in the same class and species, viz: class one, species two. The claim was in said report designated as number 409, and was that of Louis Liotaud (State Papers, p. 244) It was in some respects more definite and con

tained a fuller showing than that under consideration. For example, some of its boundaries were named, and the date of the order of survey was given.

The supreme court, in deciding that case, stated explicitly that:

The question presented is, whether or not the claim of Louis Liotaud for a tract of land situated in the eastern district of Louisiana was confirmed by the act of Congress of the 11th of May, 1820 (3 Stat., 573), against any claim to the land by the United States, so that any entry could not be made upon it in favor of Major General Lafayette.

After thus succinctly stating the question, the court noted the fact that

the register and receiver had said in their report, that all the claims, included under the second species of the first class, were already confirmed by the act of Congress of the 12th of April, 1814,

and said that

In this they were certainly mistaken, as they were also in placing Liotaud's claim in what was termed in their report the second species of the first class of claims.

In concluding the decision, the court used the following strong and unambiguous language:

Liotaud's claim, having been mistakenly put where we find it, it is neither within the letter nor the intention of the act of the 11th of May, 1820, confirming titles to land described by the register and receiver.

The purport of language so plain and positive as this can not easily be mistaken, and what the court said of that claim applies with equal force to this, for the two are in the same class and species in the report made by the register and receiver in 1816. If that was not confirmed by the act of 1820, neither was this, and not having been confirmed by said act, or any other, there is no legal basis for the issuance of scrip under the act of 1858.

Your office decision refusing to issue certificates of location on the claim of William Goforth is accordingly affirmed.

HOMESTEAD ENTRY-COMMUTATION-REPAYMENT.

AUGUST POLZIN.

Repayment, with the right to thereafter submit the ordinary homestead proof, can not be accorded to a homesteader who has made commutation proof, which is found insufficient; but he may submit new commutation proof within the life of the original entry.

First Assistant Secretary Muldrow to Commissioner Stockslager, January 18, 1889.

I have considered the appeal of August Polzin from your office decision of October 12, 1887, rejecting his application for repayment of purchase money paid on commutation proof under homestead entry for the

NW., of section 30, T. 101 N., R. 67 W., Mitchell, Dakota, land district.

Polzin made homestead entry for said land April 10, 1883, and advertised to make final commutation proof thereunder on February 28, 1885, before the clerk of the District Court.

Proof was made March 4, 1885, before the officer named in the advertisement. Accompanying the proof was the affidavit of the claimant setting up that the delay in making said proof was occasioned by the sickness of his child, and that it was made as soon as possible after the day advertised; and also the affidavit of J. E. Cone, a physician dated March 4, 1885, stating "that February 23, 1885, he was called to the residence of August Polzin on Sec. 30, T. 101, R. 67, to treat profes sionally the child of said Polzin that he found said child dangerously sick in which condition he has remained ever since. The local officers accepted said proof and issued final certificate thereon bearing date of March 31, 1885.

By your office letter of October 29, 1885, the claimant was required to file an affidavit showing that he had not alienated any part of said land between the date of the final proof and the date of final certificate. The claimant filed his affidavit dated November 28, 1885, stating that he had not then alienated any part of said land and that he and his family had resided there continuously since making proof.

By letter of January 21, 1886, your office rejected said proof because not made on the day advertised. By letter of July 28, 1887, the regis ter transmitted Polzin's application for repayment of the purchase money paid on his cash certificate and asking "that his original entry may be allowed to stand subject to proof by himself or his heirs in due and legal course."

I concur with your office that there is no authority in law for the repayment of the pur chase money in this case and the decision refusing the application for repayment is therefore affirmed.

This rejection of his application for repayment does not in any manner affect the entryman's right to offer new proof at any time within the life of his original entry.

RESIDENCE-PUBLIC OFFICIAL.

JAMES A. JENKS.

When a bona fide settler has established a residence, and is afterwards called away by official duty, such absence will not work a forfeiture of his rights.

First Assistant Secretary Muldrow to Commissioner Stockslager, January 19, 1889.

On November 15, 1880, James A. Jenks made homestead entry for the N. of the SE. 1, and the S. of the NE. of Sec. 11, T. 151 N., proof at the local office

R. 54 W., Grand Forks, Dakota. He submitted in commutation of his claim, on July 31, 1885. This proof was rejected