In view of the fact that counsel have already argued the case once orally before this Department, it is not deemed advisable to further prolong the discussion.

The motion is accordingly denied.

VIRGINIA MILITARY DISTRICT, OHIO.

JEREMIAH HALL.*

Suit to set aside patent not advised in the absence of any interest on the part of the government.

Secretary Lamar to Attorney-General Garland, February 8, 1886.

I am in receipt of your letter of December 29, 1885, transmitting for my consideration and for an expression of my views thereupon, a copy of a letter, dated December 28, 1885, from Jeremiah Hall, Esq., asking "leave to bring several actions, or at least one, in the Circuit Court of the United States on your relation as Attorney-General against parties in possession of land located in violation of the proviso of the act of March 2, 1807," etc.

I have carefully examined the matter thus presented. I find that the questions raised by Mr. Hall's letter have frequently been before the General Land Office and this Department in connection with applications for patents for certain of these lands. Mr. Hall, as attorney, has with great energy and persistency been for years urging claims of the class referred

He appears to have tried every remedy available, not only in this Department, but in the courts of Ohio, not excepting the Supreme Court of that State, the latest decision of which, so far as I am aware, was rendered during the October term in 1883, in the case of Ruggles v. Crew et al., and was adverse to his client. See also Fussell v. Gregg et al., (113 U. S., 550). A claim of Ruggles et al. had previously been before the Land Office and this Department, in both of which a conclusion adverse to claimants was reached, and the issue of patent refused. These decisions, to be found at pages 11 and 17, respectively, of "Decisions of Department of Interior," published by the Land Office, and a copy of which, I presume, is in the library of your Department, contain a full and detailed history and review of the legislation of Congress relative to lands in the Virginia Military District in Ohio. They bear date, respectively, May 9, 1882, and January 31, 1883.

Upon a careful reading of the same and full consideration of Mr. Hall's application, I am unable to see that any interest of the government would be subserved by its lending its name in suits to be instituted as suggested, or that for any reason it should be made a party, either directly or indirectly, in the prosecution of suits as proposed. I have the honor therefore to recommend that Mr. Hall's application be denied.

* For a full history of the question involved, see Vol. 1, of Land Decisions, page 11 et seq.

MINING CLAIM-EXPENDITURE.

CIRCULAR.

Commissioner Sparks to registers and receivers, and surveyors-general, December 14, 1885.

1. For reasons stated in decision dated October 31, 1885, in the case of the Good Return Placer Mine, (4 L. D. 221), the Hon. Secretary of the Interior holds that the "circular instructions of 9th December, 1882, and the first requirement of the circular of 8th June, 1883, are erroneous, and the same are accordingly overruled."

2. Said decision also holds

That the annual expenditure to the amount of $100, required by section 2324, Revised Statutes, must be made upon placer claims as well as lode claims.

3. That "compliance with the terms of this chapter', as a condition for the making of application for patent according to section 2325, requires the preliminary showing of work or expenditure upon each location, sufficient to the maintenance of possession under section 2324, either by showing the full amount for the pending year, or if there has been failure it should be shown that work has been resumed so as to prevent relocation by adverse parties after abandonment."

4. "That as section 2325 only directs proof of expenditure to the amount of five hundred dollars by certificate of the surveyor general on the claim embraced in the application for patent, it must be error to hold that it further requires that amount on each individual original location, in lieu of the amount already provided for by section 2324."

5. Registers will, therefore, before receiving any applications or permitting entry upon applications already made, require a satisfactory preliminary showing of work or expenditure, under paragraph 3 hereof, upon or for the benefit of each location embraced in the claim, which may, where the matter is unquestioned, consist of the affidavit of the applicant, clearly and specifically setting out all the facts constituting the compliance with the law by himself or grantors. Where application is made by an incorporated company, or where an applicant satisfactorily shows by affidavit that he is not personally acquainted with the facts, the applicant's affidavit may be made by the duly authorized agent who has such knowledge, but whether made by principal or agent it must be specifically and fully corroborated by the affidavits of at least two disinterested and credible witnesses familiar with the facts. This showing must include the year in which the application for patent is filed. The evidence specified in paragraph 32 of circular N of October 31, 1881, will still be required. Where the abstract of title is dated prior to the date of filing the application for patent, a continuation of the abstract to and including such date must be filed before the applicant is allowed to make entry.

6. Where an application for patent embraces several locations or claims held in common, constituting one entire claim, whether lode or placer, an expenditure of five hundred dollars, under section 2325, R. S., upon such entire claim embraced in the application will be sufficient and need not be shown upon each of the locations included therein.

You will observe carefully the modification of the practice and regulations as above indicated.

Approved.

L. Q. C. LAMAR,

Secretary.

PRACTICE-COURT OF CLAIMS.

ANTONIO VACA.*

A case will not be sent to the Court of Claims for its action or opinion on questions of administrative nature that are clearly within the jurisdiction of the General Land Office, where the matter is pending.

Secretary Lamar to Commissioner Sparks, February 3, 1886.

I am in receipt of a letter, dated January 25, 1886, from Robert B. Lines, Esq., of this city, in which, as attorney for Messrs. John Ledyard Hodge and Andrew H. Sands, he refers to a letter, addressed by him to this Department on the 11th of November last, relating to the opinion of the Court of Claims, in the case of Hodge and Sands v. The United States, involving certain questions growing out of the private land claim of Antonio Vaca, deceased. Said opinion was by departmental letter of July 7, 1885, transmitted to your office for its guidance in further acting upon the case. Said letter of Mr. Lines, of November 11, 1885, was also referred to your office for appropriate action in connection with the Vaca claim.

His letter, now before me, suggests that the case be again transmitted to the Court of Claims for its opinion on the following points:

1st: Is it the duty of the Secretary to issue patents upon the scrip in question (or upon that portion of it for which cash has not been substituted)?

2d: If so, in what form should those patents be issued?

3d: To whom, if issued, should they be delivered?

It does not occur to me that the above questions raise any point which calls for a return of the case to the Court for its further action or opinion, or that they suggest any good reason why it should be so returned. They suggest matters action in which will be largely adminis trative and ministerial, and which not only fall within the jurisdiction of your office and the scope of your authority, but which, as the case

*See page 13 of this volume.

now stands, it seems to me peculiarly appropriate and fitting that you should decide when the case is reached for action in the regular course of business.

I must therefore decline to consider the request of Mr. Lines.

MINING CLAIM-PRACTICE.

ALBION CONSOLIDATED MG. Co.

On application for entry, proceedings were stayed by the intervention of an adverse claim which was subsequently waived in the local office. The district officers, holding that such waiver did not remove the stay, refused to exercise jurisdiction. On appeal the Department reversed said decision. Held, that good practice requires the return of the record to the local office for a decision on the merits.

Secretary Lamar to Commissioner Sparks, February 10, 1886.

I have considered the petition of the Albion Consolidated Mining Company for a writ of certiorari, in the matter of their application for patent of the Albion No. 1 lode claim, Eureka land district, Nevada.

The papers before me disclose the fact that, after departmental decision of August 27, 1885, in the case of The St. Lawrence and Richmond Mining Companies v. The Albion Mining Company (4 L. D., 117), request was made by said Albion Company for a final decision by your office upon the record in their application, without transmission of the papers to the local officers for their preliminary decision. This request was denied, and thereupon the company filed an appeal. But your office held that said action was taken upon a matter of simple administration, resting in its discretion, and was therefore not subject to appeal. Hence this petition under Rule 83.

The contention of the petitioners is that the appeal from the local officers removed the case from their jurisdiction, that it now becomes the duty of your office to pass on the case finally, and that such is the uniform practice. In so reasoning, the company overlook the fact that, until the date at which adverse claim was filed, the local officers merely received the various papers of the applicant, and that said adverse claim and subsequent suit prevented the attachment of their jurisdic tion to decide upon the applicant's right of entry. By force of the statute, the proceedings were stayed until the decision of the court, or the waiver of the adverse claim. When afterwards a certain waiver of the adverse claim was filed with them, the real question was whether it removed the stay and gave them jurisdiction to decide the application on its merits, and they ruled that it did not. This was the question which was brought before your office and this Department by the company's appeal, and which was decided on August 27, 1885. Said decision held that said waiver gave jurisdiction to the local officers, and it would seem that good practice requires the return of the record to

them for decision on its merits.

Both the law and the rules of practice

contemplate that the primary decision on the merits of the mineral applicant's case shall be made by the local officers, subject to your supervisory control or to the usual right of appeal which is allowed in other applications for land.

A case of this kind, where the local officers never assumed jurisdiction, is to be distinguished from one wherein they have taken jurisdiction and decided upon the applicant's right of entry. In such a case, whether the rejection is based upon matter of law or fact, the appeal brings up the whole record, and the decision of the appellate tribunal disposes of it finally.

For the foregoing reason, the Albion Company's petition is denied.

EVIDENCE-DEPOSITION.

JACKSON v. FARRALL.

Though an affidavit for continuance may not be strictly in accordance with rule 20 of practice, yet if held sufficient by the local office, it is not error to consider said affidavit as evidence on the admission that the witnesses if present would testify as alleged.

The right of cross-examination, in taking evidence by deposition, is exercised by filing cross-interrogatories as provided in rule 25 of practice.

Secretary Lamar to Commissioner Sparks, February 10, 1886.

I have considered the case of Charles B. Jackson v. Thomas Farrall, as presented by the appeal of Jackson from the decision of your office, dated December 13, 1884, dismissing his contest against the homestead entry of the SW. of Sec. 32, T. 11 N., R. 18 W., Grand Island land district, Nebraska, made April 25, 1882, by said Farrall.

1

The record shows that Jackson initiated contest against said entry, on November 2, 1883, upon a charge of abandonment and change of residence for more than six months, and a hearing was had on December 20, same year, both parties being present, with counsel and offering testimony. From the evidence taken at the hearing, the register and receiver rendered their joint opinion that the allegations were sustained, and they recommended that said entry should be canceled. Upon appeal, your office reversed their action and dismissed the contest. At the hearing, the defendant moved for a continuance, upon the ground of the absence of material witnesses, and filed his affidavit stating what he expected to prove by the absent witnesses named therein. Counsel for plaintiff objected to the sufficiency of said affidavit, but admitted that the witnesses, if present, would testify to the statements made therein.

While the affidavit does not strictly comply with the requirements of rule of practice No. 20, yet having been adjudged sufficient by the district land officers, who state in their decision that the plaintiff "admits