The proceedings appear to be regular, and upon the testimony presented you decided that the entry should be canceled.

The cancellation of the entry resulting from the first contest, the subsequent one by Demers necessarily falls and the testimony therein. is not considered.

You ask, in connection with these cases, should Bennett fail to make entry of the land within the period allowed him for that purpose by the act of May 14, 1880, or should he waive his right as contestant, would the tract be subject to entry by the first legal applicant, or should Demers have the preference.

The right allowed a contestant by the act of May 14, 1880, is a personal one and cannot be transferred or assigned. Neither is it a bar to an entry of the land by another party, at any time subsequent to the cancellation of the contested entry.

An entry allowed within the period during which the contestant's right attaches would, however, be forfeited should he present his application within the time allowed him for that purpose.

In the case in question the first legal application for the land should be received and made of record, and should Bennett fail to exercise his right of entry under the law it would be allowed to stand.

Demers could claim nothing by virtue of the contest instituted by him.

HOMESTEAD-RESIDENCE-SECOND CONTEST.

NICKALS . BIRD ET AL.

In the cases of two homesteaders who entered land within the inclosure of an occupant, and were prevented from establishing permanent residence on the same within six months from date of entry because of threats of the occupant, and a decision of the local land officers, in a contest brought by the occupant, in favor of the latter, rendered within the six months and thereafter set aside: Held, on second contest brought by the occupant on the ground of abandonment, that time should not run against the homesteaders during the period from date of said decision of the local officers and the date that the same was set aside, and that therefore inasmuch as abandonment for a period of over six months from date of entry could not be shown, the entries were not subject to attack under section 2297 of the Revised Statutes.

Commissioner McFarland to register and receiver, Eureka, Nevada, January 13, 1882.

I am in receipt of your letter of October 24, 1881, transmitting the testimony taken at hearings held at your office July 11 and 12, 1881, with a record of the proceedings in the contested cases of William W. Nickals . the parties to the following homestead entries involving the entries, to wit: No. 159, March 23, 1880, Thompson J. Bird SW. Sec. 17, 20 N., 52 E.; No. 161, March 23, 1880, Peter Winn, SW. † of SE. † 4 Sec. 17, N. of NE. Sec. 20, and NW. 4 of NW. Sec. 21, 20 N., 52 E.

The entries were attacked by Nickals on the ground of abandonment, by affidavits filed April 21, 1881, a period of a year and nearly one month after date of the entries.

It appears that Nickals has fenced a tract containing about 1,000 acres, and that the tracts in said entries are almost entirely within the inclosure.

Nickals states that Bird appeared on the outside of the fence about the 27th or 28th of September, 1880, and commenced the construction of a small house, which was found partly finished a few days after, and situated within the inclosure, and that in May, 1881, Bird again appeared and put a canvas roof on the house. Nickals also states that a spring had been cleared out and a ditch opened, requiring about two days' work. Although the testimony of Nickals is to the effect that Bird did not make settlement until the 27th of September, 1880, his statement is not very positive as to the date, and is unsupported by his witnesses. On the other hand Bird testifies positively that he commenced building the house on September 20, 1880, and that he was on the land in March and May, 1881, and, in June, 1881, went thereon and remained there. Bird is positive from dates and circumstances that he commenced improving the tract on the 20th of September, 1880. At the latter date, six months from date of entry had not expired. Bird states that the land having been in litigation and the decision of your office against him he felt unable to risk expenditure thereon sufficient to establish a permanent residence upon the tract until informed of the decision of this office in his favor in April, 1881. Bird referred to the previous contest of Nickals against Burbank, Bird, Winn, et al., which will be referred to further on.

The testimony in the case of Winn shows that he conveyed lumber to the land embraced in his entry May 24, 1881, and that he was then threatened with violence by Nickals, in consequence of which he, Winn, left the lumber and returned to Eureka. On June 5, 1881, Winn commenced the erection of his house on the land, but it appears that he was unable to finish it previous to the hearing, because of sickness and poverty, and sought shelter with Bird, who lived in the vicinity. Winn was sick nearly all the time from August, 1880, until May, 1881, part of the time being in the county hospital. These facts were not disputed on trial, cross-examination being waived and no evidence adduced in rebuttal. It would appear, therefore, that it was impossible for Winn to have made settlement for a period commencing about five months after entry and ending subsequently to the initiation of the contest in April, 1881.

Bird and Winn claim under the homestead statutes for the benefit of soldiers and sailors.

You decided that the defendants had failed to comply with the requirements of the homestead law in respect to residence, citing in your opinion as to Bird's case the decision of the honorable Secretary of the Interior in the case of Byrne v. Catlin (2 C. L. L. 406), in which it was

held that going upon the land by the homestead claimant and remaining over night once or twice in six months fails to establish the residence contemplated by the homestead law. Defendants took an appeal from your decision.

The prior contest of Nickals against the parties above mentioned was made on the ground that the lands, being inclosed and in the possession of Nickals, were not subject to homestead entry. This contest was commenced April 5, 1880, less than one month after the entries were made, and on August 31, 1880, before the expiration of six months from date of entry, you rendered a decision adverse to the homestead parties. The decision of this office dismissing the contest, dated March 31, 1881 (Copp's L. O. for July, 1881, p. 57), which became final, reached your office on or about April 15, 1881, in which month the present contest was commenced. It therefore appears that the homestead claimants were embarrassed by the possession of Nickals and the adverse decision of your office, rendered within six months from date of entry and not set aside until a few weeks prior to the initiation of the present contest. When the first contest commenced, in April, 1880, there was ground for apprehension as to the result upon the part of defendants, in view of the decisions then followed; besides, upon the decision of your office in August, 1880, there was danger of ejectment by due process of law in case of inhabitation of the tracts by them. I do not think that it has been shown, as you conclude, that the "element of good faith" has been lacking on the part of defendants. The case of Byrne r. Catlin, cited by you, is not analogous to the ones under consideration. On account of the circumstances mentioned I think that time should not run against the defendants.

I have mentioned testimony relating to a period of time subsequent to the initiation of this contest, not as relevant to the issue, but in order that my ruling may be the better understood. It being held that time should not run against the defendants up to April, 1881, it follows that the entries at the time of the contest in said month were not subject to attack on the ground of abandonment under section 2297 of the Revised Statutes. Your decision is reversed for the reason given.

HOMESTEAD ENTRY-RELINQUISHMENT.

EDWARD EZERNACK.

Relinquishment of homestead entry because of conflict and to avoid contest, does not prevent party from making another entry.

Commissioner McFarland to register and receiver, Natchitoches, La., Feb. ruary 2, 1882.

Referring to your letters of June 23, September 3, and December 3, 1884, in the matter of homestead entry No. 2010, of Edward Ezernack, made March 1, 1881, for the E. of NE. and S. of NE. † Sec. 20, T.

8 N., R. 8 W., La. M., and subsequently found to be in conflict as to the SE. of NE. † and NE. † of SE. 1, with Rio Hondo claim No. 102, in the name of James McKim, jr., and for this reason relinquished and canceled under the act of May 14, 1880, I have to state that inasmuch as the said entry was illegal in its inception, because of the conflict here stated, and was for this reason, and to avoid contest, relinquished and canceled, the act of the party thereto cannot be considered such a voluntary relinquishment as will deprive him of the right to make another homestead entry.

The party is, therefore, hereby allowed to make another entry, with credit for existing payments, and you will so inform him.

HOMESTEAD ENTRY-RESIDENCE ON SEGREGATED LAND.

ELI EWELL.

Credit cannot be given for residence on a homestead, under act of May 14, 1880, during the existence of a prior entry on the land.

Commissioner McFarland to Eli Ewell, Spring Grove, Nebraska, February 2, 1882.

In reply to your letter of the 20th ultimo, inquiring as to making proof upon your homestead entry, No. 6661, made April 21, 1879, for the S. of SW. and W. of SE.Sec. 15, T. 4, R. 20 W., alleging that you have resided thereon for the past six years, I have to state that the records of this office show that homestead entry No. 2544 was made upon the tracts named in 1874 and remained of record until January 7, 1879, when it was canceled for relinquishment. Had it not been for this entry, and had there been no adverse claim to the tracts for the last six years, or during your residence thereon, you could have received credit for such time, as provided by the act of May 14, 1880, in computing the term of residence required to acquire title; but in view of said existing entry you can only receive credit from the date of cancellation of said entry.

HOMESTEAD-PRELIMINARY AFFIDAVIT.

GIESEKE v. KIWILIAN.

Where an imperfect knowledge of the English language is shown, parties can cure a defective entry by filing a new affidavit.

Commissioner McFarland to register and receiver, Benson, Minnesota, February 6, 1882.

The case of Fred. Gieseke v. Martin Kiwilian, involving homestead entry No. 9977 on the W. of NW. and NE. 4 of NW. Sec. 20, T. 120 N., R. 43 W., was closed by this office June 18, 1881, Kiwilian having purchased the land under the second section of the act of June 15, 1880,

per cash entry No. 4860. I am now in receipt of your letter of Decem ber 12, 1881, transmitting the application of Gieseke to have the cash entry above mentioned canceled for the reason that the homestead entry upon which it is based is wholly illegal. Gieseke alleges, and the testimony shows, that Kiwilian made the original affidavit before the clerk of the court for the county in which the land is situated, per section 2294, Revised Statutes; that neither he nor any member of his family was at that time residing on the tract.

Kiwilian testifies, however, that his knowledge of the English language is very imperfect; that he was not aware that he made affidavit to the statement above mentioned. It has been the practice of the office to permit parties whose entries are found to be defective in this respect to complete the same by filing a new affidavit, provided the first appeared to have been made in ignorance of its contents. I see no reason to doubt that such was the case with Kiwilian. The entry is not, therefore, wholly void, and the purchase of the tract by Kiwilian is, I think, within the scope of the act of June 15, 1880.

His entry will not, therefore, be disturbed, and you will so advise the parties.

HOMESTEAD-DEVISEE-RELINQUISHMENT.

H. C. DODge.

The devisee of a homestead claimant is entitled to all the privileges that would descend to the heirs.

Commissioner McFarland to register and receiver, Sin Francisco, California, February 10, 1882.

Referring to my letter of November 11th last, relative to homestead entry No. 2762, covering the NW. Sec. 6, T. 23 S., R. 8 E., requiring H. C. Dodge (devisee of N. E. Adams, the homestead claimant) to furnish an affidavit explaining his connection with the case and also evidence establishing the date of Adams's death, I am in receipt of your letter of the 26th ultimo, transmitting certain papers bearing on the

case.

From all the papers in the case it would appear that on May 7, 1877, Mr. Adams made the entry in question, the affidavit in which was made before the clerk of the court for the county in which the land is situated, May 3, 1877. Adams died May 24, 1877, devising his homestead entry to Dodge; the will was filed for probate April 23, 1879, and letters testamentary were issued May 17, 1879, instead of 1877, as stated in my former letter. Mr. Dodge fully explains his connection with the

case.

May 24, 1881, Escolastica Freeman initiated a contest for abandonment against said entry, notice of which was served on the devisee, who appeared before you at the time fixed for the hearing.