NATURALIZATION-RECORD EVIDENCE. GILMORE v. PALLETT. Naturalization of the father during the minority of the son inures to the benefit of the latter, under section 2172 R. S., and makes him a citizen. Where the record relied upon to show naturalization fails to disclose a specific judgment of the court admitting the applicant to citizenship, but does show that the requisite oath was administered, the proof of naturalization may be accepted, as the oath when taken confers the rights of citizenship, and amounts to a favorable judgment on the application of the alien, First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 7, 1893. On January 9, 1884, Eva Gilmore filed pre-emption declaratory statement No. 8294 for the N. of the NW. 4, the SE. of the NW. 4, and lot 3, the NE. 4, Sec. 10, T. 9 N., R. 10 E., M. D. M., Sacramento, California, which was canceled by relinquishment October 22, 1887. On October 22, 1886, Elmer M. Bell made homestead entry for said land, which he relinquished March 21, 1888. On the day Bell filed his relinquishment, William H. Pallett, defendant herein, filed declaratory statement No. 9760 for the same land, alleging settlement thereon March 17, 1888. He purchased Bell's im provements for $5.00. On May 31, 1888, the said Eva Gilmore made homestead entry No. 5294 for the same land, claiming settlement from January, 1884. After due notice, Pallett offered final proof, June 14, 1889, and Miss Gilmore appeared by attorney and contested Pallett's right to the land. The register and receiver decided that Pallett "has fully complied with all the requirements of the law, and that Eva Gilmore has totally failed so to do." On appeal, you, by your decision of March 8, 1892, affirmed that decision, and held Gilmore's entry for cancellation, from which judgment a further appeal brings the case to this Department. I have examined the testimony and find the same substantially set forth in the decision appealed from. Pallett's residence upon the land was practically continuous, and his improvements and cultivation amply demonstrate his good faith. It is insisted, however, that he is not a qualified pre-emptor; that he is an alien, and has never declared his intention to become a citizen of the United States. This is met by Pallett's sworn statement, in which he says that he was born in Hertfordshire, England, in the year 1838; that he came to America with his father, Thomas Pallett, in the year 1840, and settled in Iowa, where they resided until the year 1848, when his father removed to Wisconsin, where he lived until the year 1881, when he removed to New Mexico; thence he (claimant) moved to Cali. fornia, in the year 1885; that he claims citizenship by reason of the naturalization of his father; that when he arrived at his majority he exercised the rights of a voter. Under section 2172 of the Revised Statutes of the United States, the naturalization of the father inures to the benefit of his minor children, and the sole question is, whether the father, Thomas Pallett, was naturalized during the minority of his son, the claimant. The evidence relating to such naturalization is contained in the following, being copies of certificates and affidavits presented in the record: STATE OF IOWA, 88. } District Court, May Term, A. D., 1847, Thomas Pallett of said county, being duly sworn, deposes and says, that he does renounce and abjure all allegiance and fidelity to every Foreign King, Prince, Power, Potentate, State of Sovereignty, and particularly Victoria, Queen of Great Britain, of whom he has heretofore been a subject, and that he will support the Constitution of the United States of America, and faithfully demean himself as a citizen thereof. He prays the court to be admitted a citizen thereof. I, Eli Stoddard, a citizen of the United States of America, being duly sworn, upon my solemn oath, do depose and say, That I have known the said Thomas Pallett for five years last past, that he has resided within the jurisdiction of the United States for five years last past, and for the last year in this State; that he has sustained a good character as to honesty, and being well disposed to the Constitution and Government of the United States. ELI STODDARD. Sworn and subscribed before me, this 31st day of May, A. D. 1847. I, R. W. Allright, Clerk of this District Court in and for the County of Lee and State aforesaid, do hereby certify that the foregoing is a true copy of the naturalization papers of Thomas Pallett as filed in my office. (SEAL) (Witness my hand and the seal of said R. W. ALLRIGHT, U. S. LAND OFFICE, SACRAMENTO, CALA., I, Selden Hetzel, Register of the United States Land Office, hereby certify that the above and foregoing is a full, true and correct copy of the original instrument introduced in evidence in the foregoing matter. SELDEN HETZEL, Register. It will be noticed that there is no certified copy of any record or judgment showing that Thomas Pallett was admitted as a citizen of the United States. But the oath that he did take, as above shown, is such as is required by the second division of section 2165 of the Re vised Statutes, admitting aliens to full citizenship, after having for mally declared their intention to become such. Such being the state of the records, can it be determined therefrom that Thomas Pallett was naturalized by the district court of Lee county, Iowa? This question is answered in the affirmative, on nearly the same state of facts, in the case of Campbell v. Gordon and wife (6 Cranch, 176-2 U. S., 357), where it is said: But if the oath be administered and nothing appears to the contrary, it must be presumed that the court, before whom the oath was taken, was satisfied as to the character of the applicant. The oath, when taken, confers upon him the rights of a citizen, and amounts to a judgment of the court for his admission to those rights. See also John Skelton, 4 L. D., 107. It thus appears that claimant is a citizen of the United States, and having complied with the pre-emption law, as above shown, is entitled to patent on payment for the land. The judgment appealed from is affirmed. NORTHERN PACIFIC R. R. Co. v. SMALLEY. Motion for review of departmental decision of July 11, 1892, 15 L. D., 36, denied by Acting Secretary Chandler February 7, 1893. PATENT-APPLICATION TO VACATE. LITTLE NELL LODE. An application for action looking toward the vacation of a patent should not be considered in the absence of due notice to the patentee or his attorney. First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 8, 1893. I am in receipt of your letter dated January 23, 1893, transmitting the papers in the appeal by claimants of mineral entry No. 245, made January 21, 1887, at Deadwood, Dakota, by John O'Connell et al. for the "Little Nell" lode claim, in the case of Lead City Townsite, South Dakota, v. mineral claimants, from your decisions of June 5 and December 2, 1891, holding said entry for cancellation. You report that through inadvertence said Little Nell was patented on November 16, 1892, and the patent forwarded to the local office;" that afterwards the register and receiver were directed to return the patent, or, if it had been delivered, to request its surrender by the parties holding the same, on the ground that it was issued by mistake, and that on December 23, 1892, the local officers reported that said patent had been delivered December 15, 1892, and that their request for its return had not been complied with. With said papers is a petition of the townsite claimants, through their attorneys, requesting that suit be instituted by the United States for the annulment of said patent, which you recommended should be done. It appears that in said letter of transmittal "Messrs. Curtis & Burdett" were the attorneys for the appellant, and there is no proof of service of said petition upon said attorneys or their patentee. Said petition is accordingly returned, and you are directed to notify the counsel of said petitioner that due proof of service upon said patentee or his counsel must be furnished before the same will be considered on its merits. MINING CLAIM-AMENDED SURVEY-DEPOSIT. VANDERBILT LODE. Where an amended survey is required the entryman should be informed thereof and that if he fails to comply with such requirement within a designated period the entry will be canceled. It rests within the discretion of the surveyor general to regulate the amount required as a deposit to cover the expenses of office work on a mineral survey, and it will not be assumed in the absence of any showing that the sum required is unreasonable. Acting Secretary Chandler to the Commissioner of the General Land Office, February 8, 1893. I have considered the appeal of Jo David Brashear applicant for patent for the Vanderbilt lode, survey 695, Nogal Mining District, New Mexico. It appears that by letter of December 23, 1891, to the United States surveyor-general at Santa Fe, New Mexico, you required the applicant to have the survey of the Vanderbilt lode amended so as to exclude some territory shown to be in conflict with surrounding claims, in accordance with the requirements of circular of December 4, 1884, and you ordered that After due notice to the claimant and the deposit of a sum sufficient to pay the necessary expense, you will cause the survey of the Vanderbilt lode to be so amended that the western end of the lode line will not extend beyond where the same intersects the eastern side line of said survey 495, and also show the area in conflict with said survey 694. A copy of this order was served on the attorney for the applicant January 4, 1892, and the surveyor-general notified him that Upon proper application and deposit the order for the amended survey will be issued. As the plats will all have to be made over the usual deposit of $35 will be required. On April 29, 1892, the surveyor-general reported his action to you and said: "No action so far has been taken by the parties in interest with regard to the amended survey required." By letter of May 19, 1892, you directed the register and receiver at Roswell, New Mexico, that "said mineral entry No. 8, is hereby held for cancellation," whereupon he prosecutes this appeal. The error in your action relied on by the appellant is in requiring him to make the deposit demanded when, as he alleges, the "additional expense is required on account of alleged errors in the work of the surveyor-general, and his deputies, over which the applicant had no control and was in no way responsible for." The requirements of your said letter of December 23, 1891, were in accordance with the circular of December 4, 1884 (3 L. D., 540). But no time was given either by you or the sur veyor-general within which the claimant should make application for an amended survey, and make the required deposit; neither was he notified that in the event of failure to do so that his entry would be canceled. I think this was erroneous and that he should have been informed that his entry would be canceled, if he failed to comply with the order within the time limited. (Senator Mill Site, 7 L. D., 475.) It is a matter in the discretion of the surveyor-general to regulate the amount required to be deposited to cover the expenses of the office work in making the corrections required and I can not assume in the absence of any showing that the sum required in this instance was unreasonable. You will therefore give the claimant sixty days within which to comply with your order and in the event of his failing to do so, said entry will be canceled. Your judgment is thus modified. PRACTICE-MOTION FOR CONTINUANCE. BUCKLIN v. MCEACHRAN. An affidavit filed as the basis of an application for continuance on the ground of absent witnesses, should show that proper diligence had been exercised to procure their attendance and that their absence was without the consent or procurement of the applicant. First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 9, 1893. William McEachran made homestead entry for the SW. of Sec. 2, T. 124 N., R. 76 W., at the Aberdeen land district, South Dakota, on the 16th of March, 1886. On the 1st of April, 1890, Walter Bucklin filed affidavit of contest against said entry, alleging abandonment and change of residence on the part of the entryman, and that he had not settled upon and culti vated the land, as required by law. The local officers thereupon ordered that the testimony in the case be taken by J. W. Blair, a notary public at Bangor, about twelve miles |