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In matters not specially charged the issue is between the government and the entry

man...

Wrongful dismissal of, in the local office, and intervention of a second, will not defeat rights under the first, if said dismissal was vot through any fault of the first contest

ant..

Should be re-instated where it was dismissed in the absence of the contestant and said absence was through the fault of the defendant

408

129

60

Should be dismissed, where the contestant fails to appear, either in person or by counsel, on the day fixed for hearing.......... 252 Failure of the contestant to appeal will not preclude the Department from considering the evidence with the view to protecting the interests of the government..

Withdrawal of the contestant will not prevent the Department from considering the evidence, and passing upon the rights of the entryman as between him and the govern. ment

177

394

Government may take advantage of evidence brought out in a contest, though on a point not charged in the affidavit of...... 395 HOMESTEAD.

Of divorced wife against the homestead entry of her former husband on the ground of abandonment must fail where it appears that his family lived upon the land daring his absence, and that she forcibly retained possession on his return thereto.......

Desertion of the wife can not be shown in support of the charge of abandonment or change of residence, except by her .....

Charging failure to establish residence, and abandonment, must fail where prior to legal notice thereof the entryman had cured his laches..

35

35

198

452

Affidavit of, may be amended....

452

Affidavit of, in the nature of an information....

Date when the affidavit of, is received and accepted determines whether the contest is premature

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Not material that affidavit of, was executed before a person that subsequently represented the contestant....

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Not held as filed where the papers are placed in the hands of a special agent by the contestant

Second, should be received and held without action pending final disposition of the first.... .26, 400, 423, 428 Second, may be brought by an unsuccessful contestant on new grounds, in which the good faith of an intervening contest may be attacked

The institution of a second, waives all rights that the contestant may have had under the first ......

Charge must be established by a preponderance of the evidence to warrant cancellation

468

346

373

An offer to sell is not a good ground of.. 262 A general allegation of non-compliance not good

408

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80

Should not be allowed for land covered by
a pending railroad selection; but if allowed
will not be canceled but treated as an appli
cation and held subject to the selection....
Allowed for unselected land within the
limits of an indemnity withdrawal, subse-
quently revoked, will not be disturbed..... 240
Canceled on relinquishment filed under an
erroneous ruling may be re-instated....... 470
Amendments allowed with great caution. 293
In applications for amendment the written
opinion of the local officers, as provided for
in sec. 2372, R. S., may be properly required
in entries not expressly included within
said statute

Application for amendment should show
what efforts were made to learn the true de
scription of the land and how the mistake
occurred

Pending applications for amendment
should be adjudicated upon their merits
and under the practice heretofore prevail-
ing...

If the evidence in support of an applica
tion for amendment is not satisfactory the
case may be remanded for further showing
under the rule requiring a written opinion
from the local officers...

DESERT LAND.

155

.

Confers no right in the presence of a valid
intervening claim, where the preliminary
affidavit was executed before a clerk of court
without the requisite residence on the land. 245
Made while the entryman has a pending
unperfected pre-emption claim, is not void,
but prima facie valid, and only becomes
voidable by the subsequent maintenance of
the pre-emption claim......

213

May be amended so so to embrace the land
covered by the actual settlement and im-
provements of the entryman; and such right
is superior to all intervening adverse claim
made with a full knowledge of the facts... 387
Petition to make second, will not be con-
sidered in the absence of a formal applica-
tion for a specific tract of land

254

The right to make second for same tract
denied, where the first was made while
claiming other land as a pre-emptor, and
commutation proof was submitted under the
first, pending application to make the second 215
Failure to establish residence until after
action upon the adverse report of a special
agent does not in itself warrant cancella-
tion

Allowed in contravention of the terms of
the act of March 3, 1883, may be suspended
until after public offering of the land, and
then treated as an application, if the land is
not sold...

464

560

PRE-EMPTION.

41

155

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155

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Under an award of joint entry the parties
are not authorized to divide equally the 40
acres in dispute and enter the same in ac-
cordance with such partition.....

In case of conflicting settlement before
survey, either party may enter the whole
tract on condition that he tenders to the
other an agreement to convey to him that
portion of the land covered by his occupa

177

tion...

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Amendment not allowed for adjacent
tract, where it was not included within the
original filing and entry, for the reason that
it was then supposed to not be subject to
such appropriation

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261

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