partment December 22, 1882, and was not reinstated until April 13, 1883, and that the powers to Ayers, executed pending his disbarment, could not be recognized.

Perhaps, in view of Ayers's reinstatement because of doubt of the truth of the allegations upon which he was disbarred, this objection might be overlooked were there not other fatal ones.

It appears that by a power of attorney dated February 14, 1883, Ayers substituted for himself and appointed one Crofoot to act as the agent of Berry and Emery in the matter of these homesteads. There was no power of substitution in either of the powers from Berry and Emery to himself, and Ayres was therefore without authority to substi tute Crofoot. Under section 2309 of the Revised Statutes a soldier's declaratory statement may be filed "as well by an agent as in person." But in this as in other cases an agent cannot appoint a sub-agent unless expressly authorized so to do. In such case the sub-agent appointed without authority becomes only the agent of the agent, and not the agent of the principal, unless his appointment is ratified and confirmed by the principal, of which there is no evidence in this case. The substitution of Crofoot is therefore without force, and his acts cannot be recognized.

Besides, under your circular of December 15, 1882, the agent in this class of cases is required to file his own oath that he has no interest, cither present or prospective, direct or indirect, in the claim; that the same is filed for the sole benefit of the soldier, and that no arrangement has been made whereby the agent has been empowered at any future time to sell or relinquish such claim, either as agent or by filing an original relinquishment of the claimant. This oath has not been filed either by Ayres or Crofoot in either of these cases. For these reasons I affirm your decision and dismiss the appeals.

The cases of Berry and Emery are distinct cases and have no relation to each other, but you transmit them as one. In order that each case may have its appropriate record status, and thus avoid confusion of names, dates, and rulings upon the docket of this Department, you have been heretofore requested to direct that each separate case be transmitted by itself, and I again call your attention thereto.

5. CERTIORARI.

SHOWING NECESSARY.

WILLIAM FULLER.

'he applicant for a certiorari must invariably make a prima facie showing of matter for supervision and requiring departmental intervention.

Secretary Teller to Commisioner McFarland, October 3, 1883.

SIR: I have considered the application of William Fuller (filed in the local office, Grand Forks, Dak., the 18th ultimo, by J. G. Hamilton,

his attorney) for a certiorari under Rule 83 of Practice, in re McQuinn v. Fuller, involving timber-culture entry No. 392 of the NW. of Sec. 33, T. 160, R. 52, Grand Forks, Dak.

The paper is duly verified, but does not state what action, if any, has been had in the premises, nor is there filed a copy of any ruling, order, or decision at any time made by you therein, as a basis for specifications of error on the part of the applicant.

It should be observed that the applicant for a certiorari must invariably make a prima facie showing of matter subject to supervision, and requiring departmental intervention to prevent such undue haste in the issuance of patents or otherwise under your decisions as might jeopard the rights of parties litigant.

The matter subject to supervision must be so presented that a reasonable presumption is raised in the eye of the law that there has been such error or oversight, or at least there must be such showing in the application as will convince the Department that a proper administration of the public business requires its intervention, in order to prevent undue haste, or possibly injury to important and valuable interests. (Wight v. St. Bernard M. Co., 9 Copp, 9.)

But from applicant's own meager showing it appears that he has no legal status before this Department, and this by reason of his failure to appeal from some decision of yours, which, ipso facto, is a finality. The application is not within the rule, and is accordingly denied.

6. CONTEST.

SECOND-FIRST UNADJUDICATED.

SNAVELY V. FLICK.

A second contest cannot be initiated against an entry until the first contest has been finally adjudicated, except where such first contest is illegal in its inception. Commissioner McFarland to register and receiver, McCook, Nebr., October 25, 1883.

GENTLEMEN: For informality in the manner of service of notice, and other errors appearing in the record, this office, under date of July 21, 1883, dismissed the case of Rufus M. Snavely v. John Flick, involving homestead entry No. 1,332, made June 21, 1879, upon the N. 1 NW. 1, SE.

NW., and NE. † SW. 4, 21, 2 N., 30 W., and allowed the plaintiff sixty days within which to appeal from its said action.

I am now in receipt of your letter of the 3d instant, from which it appears that on September 24, 1883, Morillo A. Spaulding applied to contest said entry, but his application was rejected on the ground that the prior case of Snavely v. Flick was still pending and undecidedthe sixty days allowed Snavely within which to appeal not having then expired. It further appears that ou October 1, 1883, the contestant,

Snavely, appeared at your office and filed waiver of right of appeal, whereupon Daniel A. Clements applied to contest said entry.

You ask for instructions on the following points:

First. Was the entry subject to Spaulding's contest?

Second. If not, did the waiver by Snavely, of his right of appeal, render the entry subject to contest by the next legal applicant?

In reply to your questions I have to state that it was held by this office, in the case of Schneider v. Bradley (9 Copp, 64), that, "as a condition precedent to the right of initiation of a second contest against the same entry, the former case must have been finally adjudicated; and this state of a case is not reached until determination of the question of appeal, either by waiver, by failure, or by prosecution to a final decision." (Vide also ruling of the Department in Van Ostrand v. Lange, 9 Copp, 7.)

It is true that it was held by the Department in the case of Bivins v. Shelly (10 Copp, 212), that a pending contest is no bar to the initiation of another contest against the same entry; but it will be observed that this is so only, "where the first contest is not supported by law "—is illegal in its inception.

A contest that was properly instituted, but dismissed from some defect or informality subsequently arising in the proceedings, would not therefore come within the purview of said ruling.

You will, therefore, be governed accordingly in the disposition of the cases referred to in your letter.

STRANGER TO THE RECORD-AFFIDAVIT—AMENDMENT.

MAY v. HAM.

The motion of a stranger to the record in case of contest should not be accepted. Where there are two witnesses to the affidavit initiating contest, one of whom is an attorney in the case, the contest should not be dismissed, as one witness is enough.

Informalities in affidavit of contest can only be taken advantage of on the day set for hearing, and then only by a party to the record; if not thus taken advantage of, the informalities are considered waived. If objection is made, the affidavit may be amended, or the motion allowed.

Commissioner McFarland to register and receiver, Huron, Dak., October 31, 1883.

GENTLEMEN: I am in receipt of your letter of the 12th instant, transmitting the appeal of Theron R. May, from your action rejecting his contest against timber-culture No. 5,462, by Albert C. Ham, for SE. 17, 112, 63, made September 10, 1880.

The facts are as follows: May filed said contest January 8, 1883, alleging as follows: "That the said Albert C. Ham has wholly abandoned said tract, for more than one year since making said entry," &c.; this you accepted, and ordered hearing thereon for October 9, 1883.

On September 11, 1883, upon a motion by John Carroll, a stranger to the record, you dismissed May's contest, and made thereon the following annotation, viz:

Within contest dismissed; affidavit of contest does not set up grounds sufficient for a cause of action; allegations not specific in this; the party does not set up wherein the claimant has not complied with the tree claim law, and for the reason that one of the witnesses to affidavit of contest is an attorney in the case.

From this action May appeals.

On reviewing the case, I think the appeal well taken, as you have been repeatedly instructed not to accept a motion from a stranger to the record, also the fact that one of the witnesses to the affidavit of contest is an attorney in the case does not invalidate the same, as one witness is sufficient.

When a contest is by you accepted and hearing thereon ordered, any informality in the affidavit of contest can only be taken advantage of on the day set for hearing, and then only by a party to the record.

Your proper course should therefore have been to await the day set for hearing, and if the defendant failed to take advantage of the infor mality, such informality should have been considered waived (see Gould v. Weisbecker, C. L. O., vol. 9, p. 151); but should the defendant take advantage of the same, and make a motion to dismiss thereon, your proper course should be, either to grant the motion or allow the contestant to amend his affidavit so far as to make the allegations specific. (See Austin v. Rice, C. L. O., vol. 9, p. 151.)

As the day set for hearing is now passed, and as the contestant seems to be acting in good faith, you will allow him to amend the charges and proceed thereon.

Inclosed find the affidavit of contest by May, and proceed as above directed.

WITHDRAWAL OF CONTESTANT-DEPOSIT FOR EXPENSES-SECOND CON

TEST.

A motion for withdrawal of contest, whether verbal or written, at or before the day of trial is only an interlocutory proceeding, and will be decided on the day of the trial.

Money deposited to meet the expenses of a contest should not be refunded until the contest is finally determined; only the balance unexpended should then be returned.

A second contest cannot be initiated until the first one is properly ended.

Acting Commissioner Harrison to register and receiver, Niobrara, Nebr., November 20, 1883.

GENTLEMEN: I am in receipt of the receiver's letter of the 26th ultimo, making inquiry whether or not where a contest is regularly instituted and withdrawn by the contestant prior to the day fixed for

hearing, the local officers are warranted in allowing another contest to be instituted against the same tract by any other party between the day of such withdrawal and the day of hearing; also is the receiver authorized to return the money deposited to defray expenses of contest at the time of such withdrawal of contest, or on day of hearing? The case of De Laney v. Bowers, reported in Copp's L. O., vol. 10, p. 67, appears to answer the first inquiry in the negative. In that case it was held that, "when a contest has been regularly instituted, and the contestant withdraws at or before the day fixed for trial, he will be regarded as in default, and the case will proceed and be decided accordingly"; in other words, that a motion for withdrawal of contest, verbal or written, whether at or before the day set for trial, is only an interlocutory proceeding, and "the case will proceed and be decided accordingly," that is, on the day of trial. Under this view of your inquiry, and wellestablished rules of common-law practice, in the absence of any law establishing a different rule, it would be manifestly improper to allow another contest to be instituted upon a tract before a prior one, legally instituted, was disposed of. The foregoing seems also to answer the second inquiry as well, for the reason that receivers are not authorized to return money deposited to defray expenses of contest until the contest is withdrawn or other final action taken-decided-on the day of trial, and then only the unexpended balance. Any other course of procedure is liable to confuse, to be misunderstood, and often vexatious.

RULE NO. 1 OF PRACTICE-CHANGE OF ENTRY-IRREGULAR HEARING. JOHNSON v. BURKE.

Practice rule 1 allows the initiation of contests against alleged abandoned or forfeited homestead or timber-culture entries by any person, whether in interest or not, but in all other cases (including pre-emptions) only by a party in interest. In view of the irregular hearing in this case the contestant acquired no rights and the timber-culture entry, made after relinquishment of a pre-emption claim by the contestee, is allowed to stand.

Secretary Teller to Commissioner McFarland, November 22, 1883.

SIR: I have considered the case of John Johnson v. Dominick J. Burke, involving the NW. of Sec. 25, T. 124, R. 46, Benson, Minn., on appeal by Johnson from your decision of October 30, 1882, dismissing the contest.

It appears that January 29, 1881, Burke filed pre-emption declaratory statement for the tract, and that October 4 following Johnson filed an affidavit of contest against him, alleging his abandonment and change of residence from the tract, and his failure to settle on and cultivate it as required by law.

Practice rule 1 allows the initiation of contests against alleged aban