stipulation; and thereupon proceedings were suspended under the application, and suit was commenced twentieth November, 1875.

By certified copy of court minutes, it appears that this cause was, upon motion of plaintiff's attorney, continued from term to term, and on the twenty-fourth of December, 1878, more than three years after commencement of action, was still pending; and it does not appear that during all this length of time any motion was made by plaintiffs for a rule on defendants to plead, or that issue was joined.

Claimants ask that said adverse claim be dismissed, for the reasons, among others:

1. That the said adverse claim was not filed during the period of publication, but was filed after such period of publication had expired.

2. That said adverse claim has been waived by negligence of Morrison et al., in prosecuting the suit.

Section 2325 U. S. Revised Statutes prescribes that "if no adverse claim shall have been filed with the register and receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter."

The succeeding section prescribes the manner in which an adverse claim shall be filed and proceedings stayed.

Where the statute is mandatory, and prescribes one way in which a thing shall be done, it can not be done in any other way. The statutory provision being that an adverse claim must be filed with the period of publication, and declaring that if not filed within such period "no objection from third parties to the issuance of a patent shall be heard except it be shown that applicant has failed to comply with the terms of this chapter," it is mandatory upon the register and receiver, and upon this office, after the expiration of such period of publication, to recognize no adverse claim and hear no objection whatever to the issuance of a patent, except to show that the applicant has not complied with the terms of said chapter.

Applicants for patent can not extend or abridge period of publication.

It is not within the power of applicants for patent to extend or abridge the period of publication. If they can by stipulation change this provision of law, I know of no reason why they might not avoid any other in the same way; and to admit that a specific mandatory provision of statute can be avoided by agreement of the parties affected by it, would be absurd, and work endless confusion.

Consent can not give jurisdiction, where no authority of law is given over the subject-matter to be adjudicated. As Morrison et al. failed to comply with the law, by neglecting to file their adverse claim within the time prescribed by law, which they were bound to know and understand, they can not now, even by agreement with their opponents, clothe the register and receiver with a power not granted by the statute.

Had the adverse claim been properly filed within the period of publication, the question as to whether "reasonable diligence" had been used in the prosecution of the suit filed in pursuance thereof within thirty days from said filing of the adverse claim, would have been a matter for the court to determine and not this office (see decision of the Hon. Secretary of the Interior, Iowa Mining Co. v. The Bonanza Mining Co., June 25, 1879).

For the reasons stated, the said adverse claim of Morris et al. is dismissed, and applicant is at liberty to complete his proof, pay for the land, and make entry.

Notify all the parties concerned hereof. The adverse claimants not having filed their adverse claims within the period of publication, must be regarded as protestants only and are entitled to no appeal. Respectfully,

J. M. ARMSTRONG, Acting Commissioner.

No. 16. Suit brought against applicant for patent on lode claim thirteen months after publication of notice of application.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., March 22, 1877.

Register and Receiver, Sacramento, Cal.

GENTLEMEN: On the twenty-fourth February, 1874, L. W. Wood and G. W. Haskell filed in your office an application

for patent for the Woodville Placer claim, designated by the Surveyor-general as Lot No. 43, T. 16 N., R. 9 E. Mt. Do.

Mer.

The notice was published in the Daily Transcript, a newspaper published at Nevada City, California, from the 28th February to the 30th April, 1874. The notices and plats were duly posted upon the claim and in the Register's office.

The applicants claim under a location made by them on the 26th December, 1873, and a relocation made on the 7th February, 1874.

On the nineteenth March, 1874, Michael Garver filed an adverse claim against said application for patent, and commenced suit thereon, which suit was dismissed March 23, 1875.

No other adverse claim was filed with you against such application for patent.

It appears by the judgment roll of the District Court of the Fourteenth Judicial District of California in case of C. H. Seymour v. L. W. Wood et al., which has been filed in this office by the attorneys for C. H. Seymour, that on the twenty-fifth March, 1875, Seymour commenced proceedings in said court against Wood et al., alleging ownership of an undivided eight twentieths of the Nebraska Placer claim, and that the identical premises sought to be patented as the Woodville Placer claim were formerly known as the Nebraska claim. On the twenty-seventh October, 1875, judgment was rendered in favor of Seymour for eight twentieths of the Nebraska claim.

A motion for a new trial in the case having been denied by said court, an appeal was taken to the Supreme Court of the State of California.

The transcript on appeal in this case was filed in the office of the clerk of said Supreme Court on the sixth October, 1876.

Section 2325 of the Revised Statutes of the United States declares the manner in which patents may be secured to mining claims, and provides that "if no adverse claims. shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, * and that no adverse claim exists,

and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter."

Section 2326 Revised Statutes declares the manner of procedure where adverse claims are filed within the period of publication of notice and suit commenced thereon.

In the case under consideration, no adverse claim was asserted by C. H, Seymour within the period of publication, and no suit was commenced by him against said applicants, bringing into question the right of possession to any portion of the premises for which patent is sought until thirteen months had elapsed from the date of the first publication of notice.

Judgment upon such suit not recognized by land office.

The fact that Seymour commenced proceedings against the applicants for patent at that late day, and secured judgment against them for a portion of the premises, can not be taken cognizance of by this office.

The law clearly points out the time within which an adverse claim must be filed, and the time within which suit must be commenced thereon, and this office has not the power, if it had the disposition, to disregard these plain and positive requirements.

Where parties fail to file their adverse claims within the time and in the manner provided by law, they can not subsequently be permitted to assert an adverse claim before this office.

Seek remedy in a court of equity.

If Mr. Seymour has a right to any portion of said premises which this office can not take cognizance of by reason of his having failed to assert the same as provided by the statute, his remedy will be in a court of equity, to have the patentees declared trustees and compelled to convey the legal title. Stark v. Starrs, 6 Wall. 402; Johnson v. Towsley, 13 Id. 72.

This case will be taken up for final action as though no objections had been presented by Mr. Seymour.

You will inform all parties in interest, and acknowledge the receipt hereof. Very respectfully,

J. A. WILLIAMSON, Commissioner.

No. 17. 1. An adverse claim filed one day, and on the following day withdrawn and refiled, will be considered, within the meaning of the law, to have been filed on the latter day.

2. The oath of the editor and proprietor of a newspaper that the notice was published for sixty days, and in which he states the dates of the first and last insertion (if no error is apparent upon its face) considered sufficient proof of publication.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE; WASHINGTON, D. C., March 10, 1877.

Register and Receiver, Elko, Nevada.

GENTLEMEN: On the sixth of September, 1876, John F. Lewis filed in your office an application for patent, for fifteen hundred linear feet of the Juniper mine, Sprucemont mining district, Elko county, Nevada.

The notice and diagram were posted upon the claim from the twenty-eighth of August, 1876, to the twelfth of November, 1876, and in the Register's office from the sixth of September, 1876, to the twenty-second of January, 1877.

By the sworn statement of the editor and proprietor of the Elko Weekly Post, it is shown that the notice was published in said newspaper for the period of sixty days, the first publication being on the ninth of September, 1876, and the last on the eleventh of November, 1876.

On the sixth of November, 1876, the applicant for patent filed in your office a relinquishment to the westerly three hundred and nineteen feet of the claim as applied for, and withdrew his application for patent to the portion relinquished.

Protest withdrawn and refiled.

Against this application for patent, a protest and adverse claim was filed by the Sprucemont Mining Company, which bears the following indorsement, viz.:

"Filed in the Elko Land Office this eighth day of November, A. D. 1876.

"W. M. STAFFORD, Receiver.” "Withdrawn and refiled in the Elko Land Office this ninth day of November, A. D. 1876.

"W. M. STAFFORD, Receiver."

This filing can not be considered as having been made