several provisions of the act approved August third, eighteen hundred and forty-six, in relation to suspended pre-emption land claims, be, and the same are hereby revived and continued in force, and those provisions are hereby declared to be applicable to all cases of suspended entries and locations which have arisen since said acts were passed or which were omitted to be acted upon under either of said acts, as well as to all cases of a similar kind which may hereafter occur, and shall be regarded as applying to locations under bounty land warrants, as well as to the ordinary entries or sales, and to all other pre-emption cases or locations where the law has been substantially complied with and the error or informality has arisen from ignorance, accident or mistake, and is satisfactorily explained, and where the rights of no other claimant or pre-emptor will be prejudiced, or where there is no adverse claim." (11 Stat, 22.) The Homestead Act was passed May 20, 1862. It required the party wishing to take advantage of its provisions to file an affidavit before the register or receiver, setting forth certain matters, and thereupon permitted him to make an entry of 160 acres of land specified in the affidavit. No patent could issue until the expiration of five years from the date of such entry, and at the expiration of five years, or at any time within two years thereafter, the party was required to prove by two credible persons that he had resided upon or cultivated the land for the term of five years, "immediately succeeding the time of filing his said affidavit." The question now presented is this: Is a homestead entry such an entry as is provided for in the act of 1856? It will be observed that the language used in that act is very broad. It was intended to cover all entries and locations then known to the law. Was it intended to apply to all cases that should thereafter be created by law? I think it was, provided they were similar to those then in existence. The language is: "Those provisions are hereby declared to be applicable to all cases of suspended entries and locations which have arisen since said acts were passed, or which were omitted to be acted upon under either of said acts, as well as to all cases of a similar kind which may hereafter occur." If it had been the intention of Congress to limit this remedy to the entries then authorized by law, it would have said, "as well as to all cases which may hereafter occur," instead of, "all cases of a similar kind which may hereafter occur. A homestead entry is a similar entry to those before recognized. Congress has seen fit to give 160 acres to the homestead settler who will pay ten dollars and the other necessary expenses, and who will settle upon and cultivate the land for five years. It evidently regarded the settlement and cultivation for that period as an equivalent for the land, and as valuable to the government as a money consideration would be. Ignorance of the law is, in my opinion, such ignorance as is meant in the act of 1856. In fact, it is the only kind of ignorance that would be likely to result injuriously to a homestead claimant. The other cases of accident and mistake are such as are fairly within the spirit of the act. The law is a remedial one, and should be liberally construed. These claimants have substantially complied with it, and made lasting and valuable improvements, and it would be cruel on technical grounds to deprive them of their home and probably their all. I advise that their cases be submitted to the board mentioned in the act of 1816 for their adjudication, substituting the Secretary of the Interior for the Secretary of the Treasury as provided by law. Very respectfully, WALTER H. SMITH, Assistant Attorney General. HON. C. DELANO, Secretary of the Interior. Concurred in by the Secretary, May 19, 1871. No. 592. GEO. CAROBEEN. Carobeen made homestead entry, but did not remove with his family upon it until after six months from the time of his entry. He then moved upon it, made valuable improvements, and lived there many years. He was prevented from moving his family by the condition of a swamp road that led to his land. Held-That his was a case of suspended entry, and proper to be submitted to the Board. That a homestead entry commences when the qualifications, takes the oath and pays the first fee. claimant shows his That the entry may properly be considered as "suspended" when he applies to make final proof, and his entry is found defective in law, and is not passed for patent or rejected. Decision by the Secretary, Nov. 3, 1871. No. 593. ABRAHAM BUCK. Buck made homestead entry and cultivated and improved the land from date of entry, but did not reside on the land for four and a half years after entry. He was ignorant that residence was necessary. As soon as informed he built a house on the land and has resided on it from that date (more than two years). There is no adverse claim. His improvements are substantial and valuable, and there is no doubt of his good faith. Held-That the case was a proper one to be sent to the Board. No. 594. MICHAEL EWART. Ewart made homestead entry September 1, 1865. He was poor, a minister of the Gospel, made valuable improvements, and was himself on the land by day, but at night went to the place where his wife and family resided, some four miles distant, and where his congregation He swears that he thought and believed he was complying with the homestead law. was. Held-That his entry should be directed to be suspended, and then referred to the Board. Decision by the Acting Secretary, March 31, 1873. No. 596. TITLE XIV.-SURVEYS. CIRCULAR INSTRUCTIONS To give effect to the act of Congress approved March 3, 1871, (Part II., No. 36,) directing deposits made for the survey of public lands to go in part payment of the lands thus surveyed. DEPARTMENT OF THE INTERIOR, May 6, 1871. GENTLEMEN :-By an act of Congress approved March 3, 1871, entitled "An act to amend an act entitled 'An act to reduce the expenses of the survey and sale of the public lands in the United States,' approved May 30, 1862, the following became a provision of law: "SECTION 11. And be it further enacted, That in all cases where settlers shall make deposits in accordance with this act, to the credit of the United States, for public surveys, such amounts so deposited shall go in part payment for their lands situated in the townships, the surveying of which is paid for out of said deposits, and effect shall be given to this act by regulations to be prescribed by the Commissioner of the General Land-Office." In order to carry the foregoing into effect, the following regulations are prescribed for your observance, viz: When one or more settlers on public lands shall apply to the Surveyor-General of the district within which such lands are situated, for the survey of a particular township, at his or their expense, that officer shall furnish to said applicant or applicants two separate estimates, one being the cost of the subdivisional survey of the surveyable portion of the entire township, and the other to cover the expense of platting the survey as required by the 10th section, act of May 30, 1862, and the resolution explanatory of the same of July 1, 1864. (U. S Laws, vol. 10, p. 410, and vol. 11, p. 414, respectively.) Settlers availing themselves of the provisions of the above quoted section shall deposit with a United States designated depositary, to the credit of the U. S. Treasurer, on account of surveying the public lands and clerk hire in the Surveyor-General's office, in the district in which their claims are situated, the sums estimated, as aforesaid, as the cost of the field and office work. The Surveyor General will take precaution to estimate adequate sums, thereby preventing any deficiency in the payment of deputy surveyor, as well as for clerk hire involved in the service Where several settlers desire the survey of the same township, the necessary deposits to cover all expenses of the survey and platting may be so subdivided as to be proportionate to the amount of lands within the township claimed by each settler; this, however, is a matter to be regulated by parties applying for such surveys, but all applicants should be informed that the law makes no provision for the refunding of any excess of the deposit over the value of the lands taken; the excess, however, if any, over and above the actual cost of the survey in the field and office work, will be refunded as heretofore under the resolution of Congress of July 1, 1864. (U. S. Laws, vol. 11, p. 414.) No certificates of deposit can be received in payment by the Receiver for more than the cost of the land at government price, and when the certificate is for more than that amount, the Receiver will indorse the amount for which it is received, and will charge the United States with that sum only, and not with the sum named on the face of the certificate. Where the amount of deposit is, however, less than the cost of the land, the certificate will of course be received at its face value, and the remainder of cost of land paid for in cash. Assuming that the estimated cost of survey, (both office and field work,) is $850, which amount the party deposits, and the actual cost is $800; the party will be entitled, under the act of July 1, 1864, to the $50 thus deposited in excess of the actual cost of the field and office work; but he will not be entitled to the return of the $600 deposited in excess of the government cost of one hundred and sixty acres at $1.25 per acre (amounting to $200). If, however, there are several applicants, the amounts deposited by each can be equitably arranged among themselves, provided, of course, the aggregate deposits cover the estimated expenses of the survey and incidental clerk hire. The Surveyor-General shall distinctly state to the applicant that the application for survey and depositing of the money will give no preference right to the land where adverse claims exist, and that all contests relative to lands applied for, whenever they arise, must be investigated, and passed upon by the proper local land-office before pre-emption entry can be allowed or the deposit credited to the depositing settler, as the benefits conferred by the act of Congress approved March 3, 1871, herein before cited, inure exclusively to pre-emptors under existing laws. In making his monthly and quarterly returns, the Receiver shall designate the lands in payment for which certificates of deposits were used by settlers under the law, describing separately in his receipts, the amounts of such payments and the balances paid in cash, if any occur, crediting the United States in said returns with the acres and purchase money of the lands embraced by the class of entries alluded to, and debiting the same with the amounts of the respective deposits applied in payment therefor, as shown by the certificates of deposit, which are to be sent up as vouchers with appropriate quarterly accounts. Very respectfully, WILLIS DRUMMOND, Commissioner. TO THE SURVEYORS-GENERAL, REGISTERS AND RECEIVERS. [Compare carefully with No. 597.] No. 597. CIRCULAR INSTRUCTIONS To give effect to the Act of Congress approved March 3, 1871, (Part II., No. 36,) directing deposits made for the survey of public lands to go in part payment of the lands thus surveyed. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, February 25, 1873. GENTLEMEN:-By an act of Congress approved March 3, 1871, entitled "An act to amend an act entitled 'An act to reduce the expenses of the survey and sale of the public lands in the United States," approved May 30, 1862, the following became a provision of law: "SECTION 11. And be it further enacted, That in all cases where settlers shall make deposits in accordance with this act, to the credit of the United States, for public surveys, such amounts so deposited shall go in part payment for their lands situated in the townships, the surveying of which is paid for out of said deposits, and effect shall be given to this act by regulations to be prescribed by the Commissioner of the General Land-Office." In order to carry the foregoing into effect, the following regulations are prescribed for your observance, viz: When one or more settlers on public lands shall apply to the Surveyor-General of the district within which such lands are situated, for the survey of a particular township, at his or their expense, that officer shall furnish to said applicant or applicants two separate estimates, one being the cost of the subdivisional survey of the surveyable portion of the entire township, and the other to cover the expense of platting the survey as required by the 10th section, act of May 30, 1862, and the resolution explanatory of the same of July 1, 1864 (U. S. Laws, vol. 12, p. 410, and vol. 13, p. 414, respectively). Settlers availing themselves of the provisions of the above quoted section shall deposit with a United States designated depositary, to the credit of the U. S. Treasurer, on account of surveying the public lands and clerk hire in the Surveyor-General's office, in the district in which their claims are situated, the sums estimated as aforesaid, as the cost of the field and office work. The Surveyor General will take precaution to estimate adequate sums, thereby preventing any deficiency in the payment of deputy surveyor, as well as for clerk hire involved in the service. Where several settlers desire the survey of the same township, the necessary deposits to cover all expenses of the survey and platting may be so subdivided as to be proportionate to the amount of lands within the township claimed by each settler; this, however, is a matter to be regulated by parties applying for such surveys; but all applicants should be informed that the law makes no provision for the refunding of any excess of the deposit over the value of the lands taken. The excess, however, if any, over and above the actual cost of the survey in the field and office work, will be refunded as heretofore, under the resolution of Congress of July 1, 1864 (U. S. Laws, vol. 13, p. 414). No certificate of deposit can be received in payment by the Receiver for more than the cost of the land at Government price, and when the certificate is for more than that amount the Receiver will indorse the amount for which it is received, and will charge the United States with that sum only, not as cash, but in the manner prescribed in the last para |