government, he had a perfect right to settle on other lands as a preemptor, if he was qualified. His settlement cannot be impeached on this ground.

The case between the parties, then, rests on the question of priority of settlement, and preliminary to that is the question whether Tipp can be heard to set up a date of settlement earlier than that specified in his application. I think he can. Section 3 of the act of May 14, 1880, makes his right "relate back to the date of settlement," and that date of settlement is to be established as a fact in all cases, whether ex parte or contested. If the correct date is alleged, it must nevertheless be proved; if an incorrect date is alleged, the correct date should likewise be proved. To rule otherwise is to hold that a settler is bound to prove by the oaths of himself and witnesses a thing which is in fact not true. The law gives him a right to the land from the date of his settlement, if duly exercised, and I think that this right is not to be defeated by a discrepant allegation he may have made, when he can show that it was made by mistake. I am of opinion, however, that the date alleged in his ap plication should have weight as evidence against him, if he subsequently attempts to show a settlement earlier than that of an adverse claimant.

Next, as to the date of Tipp's settlement, which he fixes as October 2, 1882. On the whole, I am of opinion that he made settlement on the land on October 2, 1882, with a view to taking it as a homestead.

It is urged, however, that Tipp's settlement was illegal, for the reason that he was then holding another tract of land under the pre-emption law. This might be true if he had continued to claim other land, but as he abandoned his pre-emption claim simultaneously with the making of his homestead settlement the latter was perfectly lawful.

As Tipp was the prior settler, qualified, and as he duly applied for the land, his right to it is superior to that of Thomas, and your decision awarding it to Thomas is therefore reversed.

CONTEST-APPEAL; REVIEW.

BISHOP v. PORTER.

Where contest for fraudulent inception was dismissed because not proved, and contestant filed motion for review on the ground of newly-discovered evidence, and of superior right to the land: held (1) that a rejected application for entry, in his hands at date of the contest, is not newly-discovered evidence; (2) that said application should have formed the basis of a contest or an appeal, and may not be revived after rejection has become final; and (3) that, on appeal or review, only those rights which are put in issue by the contest may be considered in the face of adverse rights.

Secretary Teller to Commissioner McFarland, July 15, 1884.

I have before me a motion by Thurlow Bishop, filed July 7, 1884, for a reconsideration of my decision of November 14, 1883, in the case of Bishop v. Porter (2 L. D., 119).

In the

The original case came up on a contest grounded on Porter's alleged fraudulent entry, and not on Bishop's alleged superior rights. record I was compelled to consider the single question of fraud, and, there being evidence of irregularity but not of fraud, to sustain Porter's entry. Bishop was resident on the land, but, there being no evidence of a claim by him for it, I remarked that, if he had desired to assert his superior rights to the land, he should have filed a claim and grounded his contest on it. On March 3, 1884, a motion for reconsideration of said decision was filed by Bishop, grounded on alleged misconstruction of law and evidence, which was dismissed for the reason that it was filed after the time limited in Rule of Practice 77, and because it failed to assign a sufficient cause for reconsideration.

The pending motion is made on the ground of newly-discovered evidence. On examination, said evidence is found to be Bishop's homestead application, which it would appear he executed April 14, 1881, and filed in the local office, but which was returned to him because of Porter's prior entry of record. It need hardly be said that this evidence, which was in his possession at date of hearing, but which was not offered, is in no sense newly discovered evidence. Hence the motion for reconsideration is barred by Rule of Practice 77.

But apart from this, the Land Department cannot at this date take cognizance of the fact that there was once an application by Bishop. It was rejected by the local officers, and, if he had rights under it, he has slept on them. If he had founded a contest on said application, or appealed to the General Land Office from its rejection, the application would have been a part of the record, and his rights under it considered and determined. But he did neither of these things, and his failure to appeal from the rejection of the local officers nullified the application; whilst his failure to contest on the ground of priority of right left the case without a question of that kind in it. On appeal or review, this office can only consider rights which are put in issue by the contest, and such as are founded on a live application. Bishop's rights were not the issue in the contest, and his application now before me is dead. Other rights to the land have intervened, and become fixed by my former decisions and by the aforesaid decision of the local officers, and they may not now be disturbed.

There is no way in which the Land Department can lawfully revive Mr. Bishop's claim. Were the question between him and the government alone, the Department would not object to his filing a new application, and retaining his land. But here Porter has rights to the tract, which cannot be ignored. Porter made bona-fide settlement prior to Bishop's settlement, and made entry within thirty days thereafter; therefore under Section 3 of the Act of May 14, 1880, his right related back to date of his settlement so as to cut off intervening claims. Bishop's claim which intervened was absolutely cut off if Porter's entry was valid; that is to say,,if it was made in good faith and in substantial

compliance with the law. The evidence taken at the contest showed that it was so made, and that, while there might have been irregularity, there was no fraud, and hence Bishop's claim was cut off. Not only so, but, when the case came before me on appeal it was found that Bishop had no claim of record; and now it appears that a claim which he once preferred he abandoned, and rested his rights on a contest on the ground of fraudulent inception. Having chosen his own ground of contest, he must abide by the decision on it; baving voluntarily allowed his claim to die, he cannot have a revival of it at Porter's expense.

The motion is dismissed.

FEES-TRANSCRIBING TESTIMONY.

INSTRUCTIONS.

Local officers may not employ clerks, in the pay of the United States, for the purpose of reducing testimony to writing.

Testimony must be written out and signed by the witness at the time of taking it; neither hearings nor reports may be delayed in order to give the writing to particular persons; a per-diem fee for hearing cases or taking testimony may not be charged.

Acting Commissioner Harrison to register and receiver, Huron, Dakota, July 23, 1884.

I am in receipt of your letter of the 15th instant, advising me that the contract heretofore existing between yourselves and Nichols and Spalding has been rescinded. You state that you have asked to be allowed to employ men to do the work of reducing to writing testimony given before you, and that you will make no arrangement until you receive a response to said application. The application presumed to be referred to is your estimate for clerk hire for the current fiscal year, as I find no other communication from you of the date mentioned, viz, July 3, 1884.

You are informed that clerks cannot be authorized for the purpose of doing this work at the expense of the United States. When fees for reducing testimony to writing were paid into the treasury, it was proper that the work should be done by the regularly appointed clerks of the land office. But since the passage of the act of March 3, 1883, you are allowed to retain money received from this source, and the purpose and intent of the act is that the fees are to be so retained for expenses incurred.

The law is very plain, and there ought to be no difficulty in understanding it. Registers and receivers are allowed to charge fifteen cents for each one hundred words actually reduced to writing by them. You may employ such personal clerks or other persons to do this work as you please, and at your own expense, and pay them whatever price may be agreed upon, and take the fees allowed to be charged to the parties for that purpose.

There is no requirement of law that compels parties to have their testimony written out by you. If you do write it out, or cause it to be written out at your own expense, you may charge and retain the fifteen cents for each one hundred words allowed by law. Unless you do write it out, or cause it to be written out at your own expense, you cannot charge anything. And you cannot have this work done for your personal emolument at the public expense. The instructions in my previous letters that testimony, by whomsoever taken, must be written out and signed by witnesses at the time of taking the testimony, and that neither hearings nor reports can be delayed in order to give the writing to particular persons, and that a per diem fee for hearing cases or taking testimony cannot be charged by local officers, remain in force.

The foregoing will be regarded as general instructions to all registers and receivers.

PRE-EMPTION-RESIDENCE.

J. H. ABRAMS.

A settler must establish a bona-fide residence upon the land before excuses for absence (poverty, sickness, or the necessities of business) will be accepted. Absence must be the exception, and residence the rule.

Where the claimant, an unmarried man, a clerk in a neighboring town, charged with the support of his mother's family, and claiming nc other home, made the usual improvements, but resided in the town, and slept on the claim (on an average) once a week, his final proof, offered at the expiration of six months, is rejected. He may re-offer it prior to the expiration of thirty-three months from date of his settlement.

Acting Secretary Joslyn to Commissioner McFarland, September 1, 1884.

I have examined the case presented by the appeal of J. H. Abrams from your decision of January 23, 1884, rejecting his final pre-emption proof for the NW. 4 of Sec. 34, T. 163, R. 52, Grand Forks, Dakota.

April 20, 1883, Abrams filed his declaratory statement, alleging settlement on the same day, and offered his final proof October 27, 1883. The proof submitted shows that the settlement was made as alleged; that a house eight by ten feet, and stable ten by twelve feet, were erected, and five acres broken.

It also appears that the pre-emptor, who is a single man, and was at the time of making his filing living in Pembina, and engaged there as a clerk in a real estate office, has since his filing continued to reside for the greater part of the time in Pembina. In a supplemental affidavit, which accompanies the customary final proof, the pre-emptor alleges that he had no home except that upon his claim, but that being poor, and charged with the support of his mother and brothers and sisters, who resided in Pembina, he found it impossible to reside continuously upon the land. "That he went out to said land and slept thereon as many nights as it was possible for him to do, owing to his employment; that

the number of nights he slept thereon will average fully once a week in every month."

While it has been held repeatedly that continuous residence was not required in order to entitle the pre-emptor to purchase, such decisions have invariably gone upon the ground that a residence at some period had been fairly established upon the land, and that absence therefrom was the exception, and presence thereon the rule. In such cases, poverty, sickness, or the necessities of business, have been held to constitute a good excuse for the absence.

In this case, however, the final proof is offered within the shortest period possible under the law, during which time the pre-emptor has in no proper sense of that term established a residence upon the land, his presence thereon being the exception and absence therefrom the rule.

Although you rejected the final proof offered, you said that such rejection should not prejudice the pre-emptor's right to show compliance with the law at any time before the expiration of thirty-three months from date of settlement, and in this conclusion I concur. Your decision is affirmed.

FEES-TRANSCRIBING TESTIMONY.

INSTRUCTIONS.

There is no authority for making two charges (for original and copy) for transcribg testimony.

Commissioner McFarland to register and receiver, Mitchell, Dakota, September 2, 1884.

I am in receipt of the register's letter of the 26th ultimo, relative to costs of transcribing testimony taken on cross-examinations in contested cases, in accordance with amended Rule of Practice 15, and desiring to know whether the word "transcribe," as used in said rule, is intended to refer to the "first writing down of the cross-examination," or to "the copying of the same."

You are advised that you have no authority to make two charges for taking testimony. You can charge fifteen cents once for each one hundred words reduced to writing by you or at your individual expense, and transmitted in readable form to this office, and you cannot charge any more.

Amended Rule 15 requires the whole cost of cross-examination to be paid by the party making such examination, and the rule is not affected by the decision in case of Foster v. Breen (2 L. D., 232), referred to by the register.

If parties choose to employ stenographers to take down and write out testimony, they may do so. But in such case they may make their own contracts, and you can have no interest in such contracts, nor make any