2. That there was no such person in existence as the defendant Johnson, and no suit could be pending against him.

3. Because said Johnson was the material and indispensable defendant to the complaint of the plaintiff and no procedings could be maintained against a dead person. 4. Because no administrator or executor of the estate of said Johnson had been appointed, and no one authorized to represent said estate.

5. Because of the death of said Johnson, on April 4, 1886, this action abated, and there was no proceeding pending against either of the defendants on April 5, 1886.

Proof of Johnson's death was filed in support of the motion. The register overruled this motion, and also another motion to continue said cause until an administrator of the estate of Johnson be appointed Thereupon, defendant, Hugh Garrett, moved to strike out from plaintiff's testimony, taken April 5, and 6, all that part of the same relating to the personal transactions or statements made by Johnson, claimed to have been made by him during his lifetime-subject to which motion defendant introduced his testimony.

It is to be observed that, on April 5, 1886, the day fixed for the hearing, it was not known that Johnson was dead. Moreover, defendant Johnson was only a nominal defendant. He had, on February 9, 1885, six days after obtaining his receipt for the first installment, conveyed all his interests in said lands to Hugh Garrett. Both Johnson and Garrett were served with notice, and Garrett appeared. At the hearing, therefore, Garrett was the only party defendant, who had any interest in the proceeding ordered by your office on November 5, 1885. It was a proceeding to inquire as to which of the parties, Milum or Johnson, had the superior right to the land. The investigation was also made to inquire into Milum's averment that Johnson's entry was made for Garrett's benefit. Johnson having conveyed to Garrett, the latter was the only party in interest, and the register did not err in overruling defendant's motion to abate, because of Johnson's death; nor did he err in refusing to continue the case until an administrator of Johnson's estate was appointed, for the manifest reason that such administrator could exercise no jurisdiction over property belonging to Garrett. Had Johnson been living, he might have been a witness for Garrett, but his death for this reason could neither abate nor continue the suit.

Defendant also complains of the action of the register in refusing defendant the alleged right of cross-examining plaintiff's witnesses, without advancing the register's fees therefor. While the register was perhaps justified in this ruling, under the practice of your office, yet I have deemed this a proper occasion to correct a practice which often entails great hardships, and which is contrary to all ordinary rules of procedure in obtaining evidence. Rule 55 of the Rules of Practice is as follows: In other contested cases, each party must pay the cost of taking testimony upon his own direct and cross examination.

I construe this to mean that each party must pay the cost of taking the testimony of his own witnesses, both in the direct and the cross examination of such witnesses. The cross examination of a witness is

part of his testimony, and he is to be treated as the witness of the party calling him.

Rule 41 gives officers the right to summarily put a stop to obviously irrelevant questioning; still rule 56 makes it discretionary with the of ficer to allow such irrelevant questioning to proceed at the sole cost of the party making such examination. And while rule 56 refers specially to rule 54, which is confined to contests under the act of May 14, 1880, the reason on which rule 56 rests is equally applicable to cross-examinations in contests covered by the provisions of rule 55, and an amendment of rule 56 to such effect seems called for by the construction herein given to rule 55. You will accordingly please prepare and submit at an early day, for the approval of the Department, an amendment of rule 56, so as to make it conform to the views above expressed.

Section 2259 of the Revised Statutes of the United States provides as follows:

Every person being the head of a family or a widow, or a single person over the age of twenty-one years and a citizen of the United States, or having filed a declaration of intention to become such .... is authorized to enter . . . . one hundred and sixty, or a quarter section of land

imum price of such land.

⚫ upon paying the min

It is not clear from the evidence in this case that Milum is a qualified pre-emptor. The evidence should show whether she is "the head of a family" or a widow, or a single person over twenty-one years of age, or whether she is the wife of Thomas Shea.

The evidence of the naturalization of John J. Johnson is defective. The certified copy by the notary, Glenn, of a copy purporting to be a transcript from the Court of Common Pleas, Buchanan county, Missouri, can not be received. The certification of naturalization papers should be received only when made under the hand and seal of the clerk of the court in which such papers appear of record, unless such record is lost or destroyed, when, upon proof of that fact, secondary evidence may be received.

For the reasons above given, I direct that this case be remanded for a new hearing. Notify all parties in interest.

FRANK BURNS.

Motion for review of departmental decision rendered March 27, 1890, 10 L. D., 365, denied by Secretary Noble, June 4, 1890.

PRE-EMPTION ENTRY-MARRIED WOMAN-EQUITABLE ADJUDICATION.

EMMA MCCLurg.

In the absence of an adverse claim, a pre-emption entry, made in good faith by a married woman, may be referred to the board of equitable adjudication, where it appears that she had fully complied with the law as to settlement, residence, and improvements prior to marriage, and the local office, with full knowledge of the facts, accepted proof and payment for the land and issued final certificate there

for.

The case of Margaret Forgeot, 7 L. D., 280, overruled.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 4, 1890.

April 18, 1884, Emma Roberts filed her declaratory statement for the NE. of Sec. 32, T. 34, R. 15 W., Niobrara land district, Nebraska. December 29, 1884, she married William A. McClurg. April 18, 1885, Mrs. McClurg made pre-emption proof, and on the 29th of the same month paid for said tract of land, and obtained her final certificate.

By decision of your office, dated Jan uary 9, 1888, her entry was held for cancellation, on the ground that being a married woman at the date of making final proof she was not a qua lified pre-emptor, and that therefore said entry is illegal. From this decision Mrs. McClurg appeals.

The final proof shows that appellant settled on the described tract of land April 10, 1884, and resided on it continuously up to the date of making proof, April 18, 1885, and that from the time of settlement up to the date of her marriage, December 29, 1884, she was unquestionably a duly qualified pre-emptor.

Her improvements at the time she made proof-and by fair inference at the time she was married-consisted of a frame dwelling house, twelve by fourteen feet, and a story and a half high; a root house; pig-pens; eight acres of land broken, on which she had raised one hundred and twenty-five bushels of corn and twenty bushels of potatoes, and a vegetable garden. She had also set out two hundred forest trees on her claim. The total value of these improvements is estimated at three hundred dollars. That applicant could have made proof and pre-emption cash entry of the described tract of land any time between October 18, and December 29, 1884, there is no reasonable grounds to doubt. The only question to be determined then is, did appellant by her marriage. forfeit her right to said tract? Has she by this act lost all benefit under her pre-emption cash entry and turned herself out of house and home? The evidence in this case satisfactorily shows that appellant, on October 18, 1884, had complied with the requirements of the pre-emption law and the regulations of this Department thereunder, relative to filing her declaratory statement, settlement, residence and improvement of the land covered by her said certificate, and was at that time author. ized by law to make pre-emption cash entry of said land. Had she made her final proof at any time prior to her marriage, there can be no ques

tion but that she would have been entitled to a patent for said land. It must be observed that the pre-emption law does not declare a forfeiture for failure to make final proof and payment for unoffered land (such as this was) within the time prescribed by law. (Sec. 2267, U.S. Revised Statutes.)

In this case, the pre-emptor made her proof after her marriage, but since the same showed that she had fully complied with the requirements of the law as to settlement, residence and improvements prior to her marriage, that there is no adverse claim, and the entry was founded upon a bona fide right of pre-emption, that the land was public land and subject to entry, and the local officers, with a full knowledge of all the facts, accepted the proof and payment for the land and issued cer tificate therefor, I am clearly of the opinion that the entry ought not to be forfeited, but should be submitted to the board of equitable adjudication for consideration under the appropriate rule.

The Department has held for a long time that the entry of a married woman, where all the necessary acis, including publication of notice of intention to make proof, have been performed prior to marriage, should be submitted to the board of equitable adjudication for its consideration. Lydia Steele (1 L. D., 460). See also Melissa J. Cunningham (8 L. D., 433); Mary E. Funk (9 L. D., 215); Susan Herre (10 L. D., 166).

I am unable to perceive that the fact that the pre-emptor bas given notice of intention to make final proof can materially alter the case. If the applicant had in good faith, prior to her marriage, complied with the requirements of the pre-emption law and the departmental rulings thereunder relative to settlement, improvement and residence, and subsequently the local officers accepted payment for the land, there being no adverse claim, the entry should be submitted to said board for its consideration. I am not unmindful of the ruling of the Department in the case of Margaret Forgeot (7 L. D., 280), holding a different doctrine, but that case seems to me not to be in harmony with the other departmental decisions cited herein, and it is hereby overruled. The decision of your office is accordingly modified.

RAILROAD GRANT-PRIVATE CLAIM - SURVEY.

CHILDS v. SOUTHERN PACIFIC R. R. Co. (ON REVIEW).

An allegation that certain lands were embraced within a survey of a private claim, made under section 8, act of July 23, 1866, at the date when the company's right attached, and were thus excepted from the grant, must fail, if it does not appear that a copy of the plat of the township thus surveyed was filed in the local office prior to said date.

Secretary Noble to the Commissioner of the General Land Office, June 7, 1890.

The attorneys of Samuel R. Childs have filed a motion for review of departmental decision of October 8, 1889 (9 L. D., 471), in the case of said Childs v. Southern Pacific R. R. Company, rejecting Childs' application

to make homestead entry for the NW. of Sec. 31, T. 4 S., R. 3 W., B. M., Los Angeles California land district.

In support of such motion the following errors are assigned:

S.

1st. Error in neglecting to consider and give proper effect to the segregation and location upon the ground of the San Jacinto grants in October, 1867, by the United States surveyor general for California under and pursuant to the act of Congress July 23, 1866, authorizing and directing such location in such a case as this.

2nd. Error in refusing to hold that such location and segregation (which stood unreversed and valid on April 3, 1871, when the graut to Southern Pacific R. R. Co. attached) operated to except the land embraced therein from such railroad grant.

3rd. Error in holding that the land embraced in such segregation and location was public land on April 3, 1871.

4th. Error in affirming the rejection of this application.

Thus it is seen that the only question presented by this motion is as to the effect of a certain survey or surveys claimed to have been made in 1867. This survey was referred to in the decision complained of as follows: "There appears to have been some sort of survey of these two grants made in the year 1867, but such survey was never accepted or approved by your office or the Department." It is now urged that this survey was made under and in accordance with the provisions of the eighth section of the act of July 23, 1866 (14 Stat., 218), and did not need the approval of your office or of this Department to render it effective, the approval of the surveyor general being all that was necessary to that end.

The particular tract of land involved in this case, is within the boundaries of the survey claimed to have been made in 1867 of the San Jacinto Nuevo, and hence all questions relating to the other two San Jacinto grants might be properly disregarded. There are however a large number of similar cases pending in this Department and in your office involving tracts of land claimed to have been within the boundaries of one or the other of those two grants as surveyed at the time the grant to the railroad company took effect, and it was for that reason that in the consideration of this case on appeal each of these grants was considered. The questions presented by this motion for review, as will be seen from a statement of the facts, can relate to one only of said grants, and the other two may be disposed of with a statement of the facts.

The grant of the Sobrante de San Jacinto Viejo Nuevo was finally confirmed by the judgment of the United States supreme court, at the December term 1863, affirming the decree of the district court (1 Wall., 311) and patent was issued therefor on October 26, 1867. This patent designated definitely the land conveyed by said grant and having been issued prior to the date the grant to the railroad company took effect, no land other than that described in the patent was at said date reserved or affected by said Sobrante grant. All question as to land claimed to have been excepted from the grant to the railroad company by the Sobrante grant is therefore eliminated from the case, and need not be further considered.