The tract, after said relinquishment, was, as appears from the plat thereof, nearly two and a half miles in length and from a quarter to a half mile in width, running in a northwesterly direction through parts of four sections of land, and lying in a zigzag line so as to form a narrow strip.

This, in the language of the general circular of March 1, 1884 (p. 35), is "a gross departure from all reasonable requirements of compactness." The circular of instructions to local officers of September 3, 1880, expressly applies to entries of desert lands made before its issuance, and provides that such entries made on "lands not compact in any true sense" will be suspended by your office and "the parties called upon to amend their entries so as to conform to law; failing to do which, after proper notice, such entries will be held for cancellation." (7 C. L. O., 138).

No excuse being offered for this failure to observe the requirement of compactness, your office, pursuant to said circular, properly required the claimant to amend his entry "so as to conform to law."

But, it further appears, that proof of reclamation was not made and payment for the land tendered until about four years after the statutory period for making such proof and payment had elapsed, and said proof does not show whether the land was reclaimed within the statutory period or thereafter. The entry, therefore, after it is properly amended, will have to be submitted to the Board of Equitable Adjudication for confirmation, under either Rule 29 or 30 of the "additional rules" of equitable adjudication, of April 28, 1888 (6 L. D., 799)—under the former, if the land was reclaimed within the statutory period, and under the latter, if not reclaimed within that period. Those rules authorize the submission of desert land entries to the Board for confirmation in the following cases:

29. All desert land entries in which the final proof and payment were not made within three years from the date of entry, but in which the claimant was duly qualified, the land properly subject to entry under the statute and subsequently reclaimed in time according to its requirements in which the failure to make proof and payment was the result of ignorance, accident, or mistake, and in which there is no adverse claim.

30. All desert land entries in which neither the reclamation, nor the proof and payment were made within three years from date of entry, but where the entryman was duly qualified, the land properly subject to enter under the statute, the legal requirements as to reclamation complied with, and the failure to do so in time was the result of ignorance, accident, or mistake, or of obstacles which he could not control, and where there is no adverse claim.

In order to avail himself of the benefit of Rule 29, the claimant must show that his failure to make proof and payment within the statutory period was the result of ignorance, accident, or mistake," and under Rule 30, that his failure to reclaim the land and make proof and payment within said period, "was the result of ignorance, accident or mistake, or of obstacles which he could not control." Neither rule applies where there is an adverse claim.

The entry in this case, therefore, must in the first place, be amended "so as to conform to law" in the matter of compactness, and in the second place, the claimant must make proof of facts bringing the entry within the provisions of one or the other of the above rules, so that it may be submitted thereunder to the Board of Equitable Adjudication for confirmation.

The amendment can only embrace land already reclaimed at the date thereof.

You are instructed to direct the local officers to allow the claimant, within ninety days after notice hereof, to file such amendment and make payment for the land and proof of reclamation in support of the amended entry, and, also, proof bringing said entry within the purview of one or the other of said rules, when the same will be submitted for confirmation to the Board of Equitable Adjudication. The decision of your office is modified accordingly.

DURESS-ABANDONMENT-FINAL PROOF.

PLATT ET AL. v. GRAHAM.

It is not necessary that there should be actual personal violence to constitute duress. It may be effected by that degree of constraint or danger, either actually inflicted, or threatened and impending, which is sufficient in severity or apprehension to overcome the mind and will of a person of ordinary firmness.

Temporary absences from the land that indicate no intention of abandonment may be excused after the establishment of a bona fide residence.

Proof taken before business hours, on the morning of the day advertised, is irregular and defeats the object of the notice, and in such a case new proof will be required.

Secretary Vilas to Commissioner Stockslager, August 22, 1888.

I have considered the appeal of John H. Graham from your decision of August 17, 1886, rejecting his final proof for the W. of the NE. and the E. of the NW. of Sec. 25, T. 33 S., R. 16 W., Larned land district, Kansas, and awarding the tract to the contestants.

Graham filed Osage declaratory statement August 9, alleging settlement May 10, 1884. His first act of settlement consisted in staking out his claim, and commencing a dug-out-which last he subsequently abandoned, being in doubt whether it was within the limits of his claimand the commencement of a second dug-out near the centre of his claim which he was engaged in completing between May 10, and about June 19, 1881, when he went to Harper, Kansas, about sixty miles distant, on account of the sickness of his mother; but soon after returned and remained until some time in August following, when he again went to Harper with his father. This visit to Harper appears to have been caused by sickness of his father and sister. He returned to his land several times between August and November, and exercised acts of ownership. On the 5th or 7th of November, he, and his father, supplied themselves with pro

visions and returned to their tract, and commenced plowing. Some four acres had been broken upon this tract by claimant, between the date of his settlement and July 16, following. While engaged in plowing he was attacked by John W. Platt, one of the plaintiffs in this case, and by the threats, menaces, and intimidations of Platt, Tennison, and others, under the leadership of one Flato, was driven from the land in question. The land had been enclosed by a wire fence, by said Flato, a member of the cattle-firm of Flato & Platt, after claimant's settlement and prior to November 7, which enclosure embraced four sections, including the land in question. Plaintiffs, Platt and Tennison, were in Flato's employ as cattle-men, or "cowboys," and had made the following filings which covered the land in question, namely:

Platt filed his Osage declaratory statement for the SW. 1 of the NE , the SE. of the NW. 4, the NW. of the NE. 4, and the NE. of the SW., of said section, November 24, 1884, alleging settlement Sepember 23, 1884. Tennison filed his Osage declaratory statement for the NW. of the NE. 4, and the NE.

of the NW. 4, of Sec. 25, and the

SW. of the SE. 4, and the SE. of the SW. 4, of Sec. 24, said township and range. Tennison thus covered the north eighty, and Platt the south eighty, of claimant's tract.

On September 24, 1884, Graham advertised, by the usual notice, his intention to make final proof before George H. Sexton, a notary public at Sexton, Kansas, November 15, 1884. He arrived there with his witnesses on the night of the 14th, preceding the day advertised for making final proof, when he was advised that Flato and his party, includ· ing the plaintiffs Platt and Tennison, and six others, were camped back of Sexton's house, and claimant and his party were advised by Sexton's clerk to conceal themselves, and not make known their presence, and he conducted claimant and his witnesses to a place some distance from Sexton's house, where they camped for the night. Claimant and his witnesses appear to have been intimidated by the presence of Flato and his party; and their fears appear to have been participated in by the notary public, who waited upon claimant and his witnesses at four o'clock on the morning of the 15th, and advised him that it would be necessary for him to take his proof then if he took it at all, giving as an excuse therefor press of business. Claimant and his witnesses were also informed that Sexton had been offered one hundred dollars by Flato to prevent claimant from making his final proof. Claimant demurred to making proof at that hour, but was advised by the notary public, who claimed to have knowledge of the law, that it would be perfectly legal and proper to make his proof at that time. Proof was accordingly hurriedly made, at four o'clock on the morning of November 15, 1884. Immediately upon making proof claimant and his witnesses departed, avoiding Flato, Platt, Tennison, and others of their party.

Upon learning that claimant had made proof, Platt and Tennison. filed protest, which was forwarded to the local office, whereupon a hear

ing was ordered, at which voluminous testimony was taken. An examination of this testimony discloses the fact that claimant established his residence in good faith and with the intention of making it his home, on the 10th of May, 1884; that he resided upon the tract until about the 19th of June, improving the same and exercising all the ordinary acts of ownership, when he left and went to Harper, where his brother and sister resided. He returned to his land the last of July or the first of August; and about the 19th of August, 1881, he again went to Harper, with his father, who was taken sick and required his attention. Claimant also suffered from sickness (typhoid fever).

The circumstances are sufficient to excuse his absence from the land. His residence was legally established upon the land May 10, 1884 (See Grimshaw v. Taylor, 4 L. D., 330). The evidence fails to show any abandonment or intention on the part of claimant to abandon the land at any time. All the improvements upon the lands are not shown to be of the value testified to upon the final proof; but it is testified to by the witnesses on final proof of the hearing that the mistake of one hundred dollars in the valuation was the mistake of the notary public, they having placed the valuation of the improvements at $150 instead of $250, as inserted by the notary.

Claimant appears to have been the victim of a conspiracy on the part of plaintiffs, acting under the direction of Flato, to prevent his acquiring title to the land in question. The evidence of collusion and duress on the part of plaintiffs is manifest. The fact that there was no actual personal violence used is immaterial. The scene when the claimant returned with his father to resume the cultivation of the tract in question was well calculated to excite fear in the mind of persons of ordinary firmness. "Duress" is defined by the elementary authorities as constituting that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind and will of a person of ordinary firmness. See Brown v. Pierce 7 Wall., 214-5); Underwood v. Ives (2 L. D., 602).) Neither Platt nor Tennison made filings until after they had ejected the claimant and his father from the tracts within the enclosure of Flato, heretofore referred to. Flato located both plaintiff's upon their respective claims, and appears to have supplied them with the neces sary assistance to effect their settlements. Both plaintiffs, although owning no stock of their own, erected corrals as a portion of their improvements on their respective tracts. Both were in the employ of Flato and his co-partner. Their testimony that they took up the tracts for their own use and benefit can have little weight, in view of the surrounding circumstances, and the acts of the parties.

Claimant is shown to be an "actual settler" within the meaning of section 2283. He went upon the land for the purpose of seeking a home and he has the qualifications of a pre-emptor. See United States r. Woodbury (5 L. D., 303).

The evidence shows good faith on the part of claimant, and fails to sustain the allegations of contestants. The contest should therefore be dismissed. The proof is, however, defective. Proof taken at four o'clock a. m., of the day advertised is irregular and defeats the object of the notice.

Graham will therefore be allowed sixty days after receipt of the notice of this decision to re-advertise and submit new proof showing due compliance with the law.

Your decision is reversed.

PRACTICE-NOTICE-ATTORNEY.

CLARK v. SHUFF ET AL.

Notice to the plaintiff's attorney of the day fixed for hearing is legal notice to the plaintiff; and his failure to appear, either in person or by counsel, on the day so fixed, justifies a dismissal of the contest.

First Assistant Secretary Muldrow to Commissioner Stockslager, August 22, 1888.

Aaron T. Dungan made timber culture entry March 3, 1879, for the NW., Sec. 28, T. 21 S., R. 24 W., Larned, Kansas. His relinquishment of said entry, dated February 21, 1882, is endorsed upon his receiver's receipt, together with his acknowledgment thereof, made April 4, 1885.

On April 10, 1885, John R. Shuff initiated contest against said entry, and the local officers ordered a hearing to be held on June 25, 1885. Neither party appearing, the contest was dismissed. On July 28, 1885, Shuff again presented an affidavit of contest, which, as shown by the register's endorsement thereon, was "not received, office being closed on account of fire."

From a transcript of the records of the local office, transmitted February 17, 1886, it appears that one Oscar T. Pressen initiated contest against the said entry October 1, 1885, that hearing was set therefor January 10, 1886, and that "plaintiff filed motion to continue and case continued till March 5, at 10 A. M. Defendant in default."

March 15, 1886, the entry of Dungan was canceled by relinquishment, and on the same day Everett H. Clark made timber culture entry for the land in question.

On April 21, 1886, your office, referring to a letter dated October 31, 1885, addressed to the Hon. Commissioner by said Shuff, wherein he stated that his attorneys "have defrauded me out of the land,” re-instated his (Shuff's) contest and dismissed that of Pressen. From this action Clark appeals.

Messrs. Morris and Morris, attorneys, who initiated contest for Shuff, forwarded to your office their affidavit, dated January 11, 1886. This affidavit sets forth that they notifie 1 Shuff by letter, dated April 10, 1885, addressed to him at Arthur, Kansas, that the hearing upon his