court, as contradistinguished from the probate court, may exercise out of court all the powers conferred upon him as judge." And by chapter 20, touching the "administration of oaths," probate judges are designated (inter alia) among the officers who are authorized to administer oaths.

Thus it appears that each of the probate judges in Dakota is, by virtue of the Territorial law, ex officio clerk of his own court; and as it is competent for him to exercise out of court all the functions conferred upon him by law as a judge, independently of those powers of limited jurisdiction specially conferred upon him as a judge of probate, I am of the opinion that he comes within the intendment of or answers the calls of the statute when he takes such aforesaid affidavits in his clerical capacity, as being to all intents and for all the purposes of the statute "the clerk of the court for the county in which the applicant actually resides."

Section 2294 of the Revised Statutes [containing the language just quoted] not specifying what or whether any particular court, to the exclusion of every other court, is contemplated, the clerk of which may take affidavits of the class named herein, it must, I think, be concluded that its requirements on this point are met when a preliminary affidavit has been made before the clerk of either of the courts mentioned. The law (section 2294) is permissive and beneficial, its purpose being to facilitate the bona fide settlement of the public lands. It should, therefore, be construed liberally, and so as not to hamper or embarrass applicants whom it is intended to benefit." (Ashley D. Stephenson, ex parte, wherein I rendered decision the 6th ultimo.)

Following these precedents, you will instruct the several registers and receivers to accept all such affidavits in question as may have been or which may hereafter be taken before judges of probate when acting in their clerical capacity (but not otherwise), as I think the same is permissible under and in furtherance of the intendment of the statute, to wit, to obviate the necessity of such applicants making long and often tedious journeys to the proper local office.

2. AMENDMENT.

RULE 4-CONTEST-AFFIDAVIT.

COOK v. NILSON.

Where a party seeking to contest an entry files his uncorroborated affidavit he should be allowed time to amend by filing corroborative affidavits, subject to any intervening adverse claim.

Secretary Teller to Commissioner McFarland, November 13, 1883.

SIR: I have considered the appeal of Milton B. Cook from your de cision of October 25, 1882, in which you refuse to entertain his affidavit of contest, on the ground that he failed to file corroborative affidavits in support of his allegations, as required by rule 4 of the Rules of Prac tice.

It appears that Carl Nilson made homestead entry No. 3553, November 29, 1879, covering lots 2, 3, and 4 of Sec. 19, T. 35, R. 3, Olympia district, Washington Territory.

William Smith filed an affidavit of contest September 5, 1882, alleg. ing abandonment of the tract by Nilson, which was returned to Smith as "being informal" by the district land officers, who allowed him thirty days to amend.

On September 22, 1882, Cook also presented an affidavit of contest, alleging abandonment of the land by Nilson, which was held by the district officers subject to the presentation of a formal application by Smith within the prescribed time.

On September 23, 1882, the amended affidavit of Smith was received at the district office, and Cook was notified that his contest affidavit was rejected.

Cook appealed from the ruling of the district officers, and you dismissed both cases, on the ground that neither Smith nor Cook had complied with the requirements of rule No. 4.

In the case of Houston v. Coyle (10 Copp's L. O., 224) it was held that, in consideration of being placed in possession of certain information and the payment of certain expenses, the Government holds the land in reserve, for the purpose of allowing the person that furnished the information and paid the expenses an opportunity to enter the land. To secure an assurance of good faith on the part of the contestant a rule requiring his allegations to be corroborated by the affidavits of other persons has been prescribed by the Department.

Smith furnished sufficient information to give him a prima facie standing, and had deposited with the district officers the amount required as a deposit to initiate proceedings; to deprive him of an opportunity to complete his case, on the ground of a mere technicality, would prove an act of injustice.

Smith should be allowed to amend by filing corroborative affidavits, subject to any intervening adverse claimant. Your decision is modified.

3. APPEAL.

IMPROPER DISMISSAL-CERTIORARI.

JAMES MAHOOD.

Failure to appeal because of temporary closing of the local office should not injure the rights of a claimant who appeals after the time therefor expired. Certiorari not necessary.

Secretary Teller to Commissioner McFarland, May 19, 1884. SIR: In the matter of the motion for certiorari by James Mahood, on the ground that you improperly dismissed his contest against Water

town (now Aberdeen) homestead entry, No. 5,995, for the SW.

of

Sec. 34, T. 122, R. 63, Dakota, and refused to allow an appeal, for the reason that it was not filed within sixty days, it appears from the papers before me that your records now show that the receiver of the local office informed Mahood that he could not file his appeal whilst the office was temporarily closed, and that this was the cause of the delay. If this be so, certiorari is not necessary, and you are directed to allow the appeal. If it be not so, neither appeal nor certiorari should be allowed, and you will please inform Mr. Mahood that his motion is dismissed.

4. ATTORNEY.

NOTARY PUBLIC-DAKOTA TERRITORY-WHEN DISQUALIFIED.

TRAUGH v. ERNST.

A notary public disqualified for administering oaths in certain cases is thereby disqualified under the United States law. Attorneys of record in cases cannot as notaries public administer oaths in those cases. They cannot act officially and professionally at the same time.

Commissioner McFarland to register and receiver, Huron, Dak., September 7, 1883.

GENTLEMEN: I have received your letter of the 23d ultimo, transmitting the appeal of A. M. Traugh from your action rejecting his application to contest the timber-culture entry of Jacob L. Ernst, No. 9,831, made August 17, 1882, for the SE. 4, 1, 109, 67.

Traugh presented contest affidavit, accompanied with an application to enter the land, on August 18, 1833. Another contest against the same entry was filed at the same time by Hugh McLeod. The register decided the applications simultaneous, whereupon attorneys for McLeod moved to dismiss Traugh's contest on the ground that the affidavit of contest was insufficient, "it being sworn to before the attorney of contestant, he not being an official authorized to take oaths where the land is located."

The register held in his decision

That the office could not recognize the authority of a notary public to administer oaths to a timber-culture affidavit when such notary is an attorney for the contestant. The code of Dakota regulates the administering of oaths when the notary is likewise an attorney, and especially cuts off the authority of such notary when the circumstances are as indicated, to wit, when he is an attorney of the claimant.

You accordingly rejected Traugh's contest, and from that rejection. Traugh, by his attorneys, Messrs. Huntington Brothers and A. G. Harris, takes an appeal, filing specification of errors and argument.

The notary before whom Traugh's affidavit of contest was made was

Mr. Charles H. Huntington, a member of the firm of Huntington Brothers, attorneys in the case.

.

The timber-culture act provides that the affidavit of applicant to enter may be made before any "officer authorized to admin

ister oaths in the district where the land is situated."

Rule 3 of the Rules of Practice of this office provides that in contest cases an affidavit must be filed by the contestant with the register and receiver, fully setting forth the grounds of contest. Rule 4 provides for corroborating affidavits in cases therein mentioned. No officer is specifically designated as a proper officer before whom these affidavits should be made. They may be made before any officer authorized to administer oaths in the district where the land is situated.

Whether an officer is qualified to administer oaths or not is to be ascertained by the law, whether State, Territorial, or national, as the case may be, under which his authority is claimed to be derived.

Section 1778 of the Revised Statutes of the United States provides that notaries public may administer oaths in all cases in which, under the laws of the United States, justices of the peace of any State or Territory may do so.

The qualification of justices of the peace and of notaries public to administer oaths generally comes from local law, and not from Federal authority. They are authorized under certain laws of the United States to administer particular oaths by virtue of their general qualification under State or Territorial laws.

Where, as in the timber-culture laws, the Federal statute provides that an affidavit may be made before any officer authorized to administer oaths, such affidavits may be made before any State or Territorial officer who is so authorized by the laws of the State or Territory. If he is not so authorized, he cannot take such affidavit. If there are any restrictions upon the exercise of his official functions under local laws, those restrictions render his official acts under the laws of the United States without authority in any case to which such restrictions are applicable.

Section 468 of the civil code of Dakota provides that affidavits may be made before any person authorized to take depositions.

Section 473 provides that the officer before whom depositions are taken "must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding."

A notary public, or other officer holding office under the laws of Dakota, is not therefore authorized by those laws to take affidavits or depositions in any case in which he is employed as an attorney, or in which he is otherwise interested, or if he is a relative of either party.

Not being authorized under the laws of Dakota to administer oaths in any such case, he is not qualified under the laws of the United States to administer such oaths.

But if the Territorial code did not prohibit attorneys from taking aff.

davits in cases in which they are interested, they could not be allowed to do so in the practice of this office. The reason of the law is the reason of the rule, and the rule has heretofore been established in respect to clerks of courts, and is equally applicable to other officers. An officer who is also an attorney at law or in fact cannot act officially and professionally at the same time. His official acts must be free from personal interest or they cannot be recognized as entitled to due faith and credit.

Attorneys of record in cases before the courts are regarded as disqualified from administering oaths in such cases, and attorneys in cases before this office must likewise be so regarded.

Your decision is approved, and the appeal dismissed.

DISBARRED-NOTARY PUBLIC.

An attorney disbarred from practice is not prevented thereby from performing his duties as a notary public.

Commissioner McFarland to H. R. Vaughn, Pembina, Dak., October 1, 1883.

SIR: In reply to your letter of the 22d ultimo, I have to advise you that an attorney disbarred from practice before this and district land offices is not thereby prevented from exercising the duties of notary public, and such fact of itself does not in any way affect affidavits taken before him as such notary.

POWER OF ATTORNEY-DISBARRED-SUBSTITUTION.

BERRY AND EMERY.

A power of attorney given to an attorney while disbarred may be used after his reinstatement. Such attorney cannot substitute another attorney unless his power contains a provision to that effect or the substitution is ratified by the principal.

The oath required by circular instructions of December 15, 1882, must accompany a soldier's filing.

Secretary Teller to Commissioner McFarland, April 12, 1884.

SIR: I have considered the appeals of George Berry and Horatio G. Emery from your decision of April 19, 1883, rejecting their respective applications (through an agent) to file soldiers' declaratory statements upon certain tracts in the Huron, Dak., land district.

It appears that January 31, 1883, the parties, respectively, appointed James L. Ayers, of Huron, Dak., their agent to file for them soldiers' declaratory statements upon the tracts in question. You rejected the applications made under these powers of attorney, for the reason that Ayers was disbarred from practice as an attorney before the Land De