had not previously been cultivated or broken, and after the expiration of the third year, about May 1, 1885, he planted tree-cuttings on said five acres. The ground was so hard that it was necessary to use a crowbar to make holes of sufficient depth to receive the cuttings. These cuttings failed to take root and died, which is attributed by most of the witnesses to insufficient preparation of the ground, and the lateness of the season when the planting was done, coupled with the heat and dry weather. Some of the claimant's witnesses testify that the cuttings were killed by the grasshoppers, but it appears that they withered and commenced to die before the grasshoppers came. During the month of July, 1885, (the third month of the fourth year after entry), after the claimant had learned that a contest had been or was about to be begun, he attempted to cure his default for the third year, by marking out rows with a cultivator on five acres of land, that had been broken the first year, cultivated the second year and was then sown to wheat. The rows were made through the growing wheat, and locust-seed were sown therein, bat they failed to grow. The wheat was not harvested, but was destroyed by four or five hundred hogs which were pastured on the land during a portion of the cropping season of 1885.

It is contended by the claimant that his default in failing to plant trees, seeds, or cuttings during the third year, was cured by what he did during the fourth year or prior to the initiation of the present con. test, October 9, 1888.

Planting the cuttings, May 1, 1885, on the five acres which had not been broken the first year, nor cultivated the second, as required by the law, and which did not grow, can not be relied on by the claimant as curing his default. This planting was not only done after the expiration of the year in which it should have been done, but on ground unprepared as the law directs. Here was a double default, to which, according to the evidence, the failure of the cuttings to grow was-in part, if not entirely-attributable. The locust-seed sown in rows among the wheat in July, 1855, also, failed to grow. While the failure to have trees growing is not conclusive evidence of default on the part of the claimant, yet it is prima facie evidence of such default, and casts upon him the burden of showing that such failure is without fault on his part. No attempt is made by the claimant to exonerate himself, and the failure of the locust-seed to grow is attributed by some of the witnesses to the planting in the dry season, when there had been no rain, and to the manner of the planting in the midst of the wheat.

It, also, appears that in the spring of 1885, the claimant through a real estate agent offered his claim for sale at a stated price, but before the commencement of the second contest withdrew it from market and afterwards told said agent that the withdrawal was only pending the

contest.

The failure to comply with the law the third year after the entry has not been cured by what was done the fourth year, and the conduct of

the claimant, on the whole, does not evince an intent on his part to comply in good faith with the requirements of the law. The decision of your office is accordingly affirmed.

PRACTICE-PREFERENCE RIGHT-NOTICE.

LUNDY v. HOEBEL.

An entry of land apparently free from the preference right of a successful contestant, is presumptively legal, and should not thereafter be canceled without due service on the entryman of the notice required in contest cases under the rules of practice.

Jurisdiction is not acquired by the local office in the absence of due and legal service of notice.

First Assistant Secretary Muldrow to Commissioner Stockslager, July 21, 1.888.

In the case of William H. Lundy v. August W. Hoebel, appealed by Hoebel from the decision of your office, dated October 19, 1886, the record discloses the following facts:

Lundy contested the homestead entry of one Aaron Everhard for the SE.Sec. 23, T. 113 N., R. 25 W., Watertown district, Dakota, and, by the decision of your office, dated September 15, 1885, procured the cancellation of said entry. On January 2, 1886, Hoebel made timber culture entry, No. 11,400, for said tract of land. On March 22, following, Lundy presented his affidavit and the affidavit of C. J. Thomas, his attorney in this case, and in the said contest against Everhard, denying the receipt of notice of said cancellation, and asked to be allowed to enter said land. On the same day a notice to August W. Hoebel, St. Paul, Minnesota, was given by publication in a newspaper, to appear at the local office, May 20, 1886, and show cause why his entry should not be canceled and Lundy's application allowed. Two days afterwards, a copy of said notice, enclosed in a registered letter and addressed to said Hoebel, at St. Paul, Minnesota, was mailed at De Smet, Dakota. There is nothing in the record to show that this letter was ever received by Hoebel, or that a copy of said notice had been posted in the register's office or on said tract of land. No affidavit or other evidence of the non-residence of the appellant, or that any effort whatever had been made to obtain personal service on him, before said pub. lication was made, is found in the record.

On the day fixed for hearing, appellant, by his attorney, entered a special appearance, and moved that the proceeding against him be dismissed, because he had not been served with notice as required by law and the rules of practice. The motion was overruled, and appellant made no further appearance in the case.

The evidence of Lundy not having received notice of the cancellation. of the Everhard entry, in addition to the aforesaid affidavits of Lundy

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and his attorney, consists of the register's certificate that the only notice given of said cancellation by the local office was sent to A. N. Waters, Esq., of De Smet, Dakota, and the affidavit of Waters, dated March 31, 1886, that he received and returned to the land office said notice, and that he was not Lundy's attorney in said contest case against Everhard. These affidavits could not be received as evidence at a hearing, if objected to by the appellant. On this evidence Lundy's entry was allowed by the local officers. In which action your office concurs, and holds appellant's entry for cancellation.

Where, as in this case, the cancellation of an entry has been procured by a contestant, and more than three and a half months thereafter such contestant has not come forward to signify his intention to exercise his preference right of entry, and the tract of land embraced in the canceled entry, after such period, is entered by a third party, such entry is presumptively legal, and should not be canceled without due service on the entryman of the notice required in all contest cases by rules of practice in force in this Department.

The attempted service of notice in this case was unauthorized and conferred no jurisdiction on the local officers over the person of the defendant and consequently no jurisdiction to hear and determine the matter submitted to them on the ex parte affidavits furnished by Lundy. Appellant is entitled to his day in court, and to an opportunity to show cause why his entry should not be canceled.

The decision of your office, holding his entry for cancellation on the ground that it conflicts with Lundy's, is therefore erroneous. The action of the local officers in overruling appellant's motion to dismiss was proper, but the case should have been continued for service of notice on the defendant.

For the reasons given, Lundy's entry will be suspended, and a day fixed by the local officers for a hearing in the case, giving him a reasonable time, after receipt of notice of this decision, to secure service on Hoebel, whose entry in the meantime will remain of record.

The decision of your office is accordingly reversed.

TIMBER CULTURE ENTRY-PRELIMINARY AFFIDAVIT.

ALBERT D. BOAL.

A timber culture entry, made through an agent, and without the preliminary affidavit required by the statute, is illegal; but the defect may be cured by filing an affidavit properly executed, which will, when made, be held to relate back to the date of the entry.

Acting Secretary Muldrow to Commissioner Stockslager, July 21, 1888.

In the matter of the application of Albert D. Boal to perfect timberculture entry No. 5,487 for the NE.Sec. 17, T. 9., R. 40 W., North

Platte district, Nebraska, before me on appeal from the decision of your office dated December 13, 1886, the record discloses the following facts:

Said entry was made October 11, 1884, and is illegal in that Boal did not make the affidavit required of an applicant by section two of the act of June 14, 1878, (20 Statutes 113), either before the register or receiver, or any other officer authorized to administer oaths in the district where the land is situated. In fact he did not take the required affidavit in said district or elsewhere.

The entry was made through the agency of one Fred C. Powers. On September 7, 1886, special agent George B. Coburn obtained from Boal an affidavit in which he says that he did not go to Nebraska to make entry but signed the papers in Illinois; that the entry was made in good faith and with the intention of raising trees on the tract and that he had no knowledge of the timber-culture law and supposed the entry was perfectly regular.

On September 28, 1886, said special agent reported the facts in the case to your office and recommended "cancellation of entry unless claimant desired to perfect same by filing legal affidavit, in which case he should be allowed a reasonable time for that purpose, upon promptly signifying his desire so to do." He further says-"I think he (Boal) did this in good faith not knowing the requirements of the timber-culture law."

On October 9, 1886, the register at North Platte, Nebraska, transmitted to your office Boal's application-signed September 30,-to be allowed to file the affidivit required by law to make the entry valid. In this application, which is sworn to by the applicant and corroborated by the oath of James F. Boal, applicant states, that about October 5, 1884, he was informed by his father James F. Boal,-who had been looking at land in Keith County, Nebraska that he, (Jas. F.,) had been informed by Fred C. Power, that residents of Illinois without going to Nebraska, or appearing before the land officers, could make legal timber-culture entries; that said Powers was a land agent and locator and if affiant desired would send him papers to sign and return and he (Powers) would make filing in full compliance with the timber-culture law; that he received and signed the papers in Illinois and returned them to Powers with fee inclosed, and received from Powers receiver's receipt No. 5487 dated October 11, 1884; that he took the claim in good faith and has complied with the law as to plowing and cultivation, and that he had no knowledge that the entry had not been made in full compliance with law until informed to the contrary by Coburn.

Claimant's entry was held for cancellation on the report of special agent Coburn, and in the decision appealed from his application is denied on the ground that if he "was misled and deceived as he avers, it was through no fault of the United States, but presumably due to his

ignorance of the law (which he is supposed to know) which does not excuse his error."

All men are presumed to know the law and the general rule unquestionably is that ignorance of law is no excuse. Some exceptions, however, have been made to this rule, where ignorance really existed and no intentional wrong has been done, and no actual fraud perpetrated. In the case of Ferguson v. Hoff (4 L. D., 491) ignorance of the same provision of the timber culture act shown in this case was excused. Appellant will be allowed sixty days from receipt of notice of this decision within which to make the required affidavit. When made, it will relate back to the date of entry.

The decision of your office is therefor reversed.

PLACER MINING CLAIM-EXPENDITURE.

TRICKEY PLACER.

Work done on a ditch outside of a placer claim, and prior to the location thereof, cannot be accepted in proof of the required expenditure, where it is apparent that such ditch was not made for the purpose of developing the claim.

Acting Secretary Muldrow to Commissioner Stockslager, July 21, 1888.

I have considered the appeal of The Alice Mining Company from the decision of your office of January 27, 1887, holding for cancellation the mineral entry of said company No. 2751, for the E. L. Trickey Placer claim, located in the SW. of Sec. 2, S. of Sec. 3, N. of Sec. 10, and NW. of Sec. 11, T.3 S., Range 74 W., 6 P. M., Upper Fall river mining district and Central City land district, Colorado.

Your office hold the entry for cancellation upon the grounds, that "it does not appear that the expenditure required by Sec. 2325, U. S. Revised Statutes, has been made upon this claim, and in addition thereto, it is not satisfactorily shown that any mineral has been discovered therein."

In response to a letter from your office dated October 19, 1886, the surveyor general certifies that the value of labor and improvements upon this claim is not less than $500, and that said improvements consist of "a one-half interest in a mining ditch 8,000 feet in length in earth and rock, starting from Fall River." From the approved plat of survey it appears that said ditch is situated entirely outside of the limits of the "E. L. Trickey Placer claim" and runs through a large part of the "Texas Placer claim", which is contiguous to and north of the "Trickey Placer Claim", and the deputy surveyor in his report states that "no workings have been done on the claim itself (the Trickey Placer), but a ditch has been constructed from a point on Fall River, about a mile above the claim, and runs within a short distance of the north