every authority, executed for another person pre-supposes that the party could, at the time, by his personal execution of it, have made the act valid. (Story on Agency par. 488.)

This question is fully discussed in the case of Hunt v. Roumanier's Admrs., 8 Wheat, 174, by Chief Justice Marshall, who says, inter alia, "We think it well-settled that a power of attorney, though irrevocable, during the life of the party, becomes extinct by his death."

Congress did not intend by said 7th section, to repeal section 2307, of the Revised Statutes, which gives to Hugharts minor child, upon his death, the benefit given to him, when not realized by him during his life.

The entry, if made after Hughart's death, was not an entry, as that term is used in said seventh section, and was not confirmed or affected thereby.

I am of the opinion that the application to contest the entry in this case, on account of the alleged prior death of the entryman, should have been granted, and if upon investigation it should be proved that the said entry made in the name of Hughart, was in fact made after his death, the same should be canceled as null and void. Your judgment is accordingly reversed.

NOTICE OF CANCELLATION-PREFERENCE RIGHT.

WILLIAMS v. DORRIS.

An application to purchase under section 2, act of June 15, 1880, made after the initiation of a contest against the original entry, should be suspended until final disposition of the contest.

A notice issued by the register of the local office informing the contestant of the successful termination of the contest, but at the same time stating that the entry would not be canceled by said office on account of the entryman having purchased the land under the act of June 15, 1880, is not the notice of cancellation required by section 2, act of May 14, 1880, and the failure of the contestant to make application to enter within thirty days thereafter will not defeat his preference right.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, November 2, 1891.

On November 21, 1876, William A. Dorris made homestead entry upon the NE. of Sec. 24, T. 16, R. 2 E., San Francisco, California.

On the contest of Samuel A. Williams, your office, on July 30, 1883, held the entry for cancellation, and, on appeal, the Department on May 27, 1884, affirmed that judgment, the grounds therefor being, that Dorris never established a new residence on the homestead tract, and that neither this pretended residence on or slight cultivation of the latter tract were in such good faith as entitles his homestead entry to affirmation.

On June 3, 1884, your office canceled the entry, and on the same day instructed the local officers to note the cancellation upon their records,

and notify the parties in interest. These instructions, accompanied by a copy of the departmental decision, reached the local office on June 11th of the same year, but, four days prior to the receipt thereof and on June 7th, Dorris was permitted to purchase the land under the 2d section of the act of June 15, 1880 (21 Stat., 237).

It appears that plaintiff's attorney had requested the register of the local office to inform him promptly of the departmental decision, in order that his client might make timely application to enter the land. On June 14, 1884, the register informed the attorney that instructions had been received to cancel the entry, but saying "we declined and still do decline to cancel the homestead," because Dorris had paid for the land, as above set forth.

On July 24, 1884, Williams filed his appeal from this action, which was transmitted to your office, November 4, 1887.

By your letter "H" of September 27, 1888, you directed the suspension of Dorris' cash entry, pending Williams' application to enter the land, and instructed the local officers to note the cancellation of Dorris' homestead entry on their records as of June 3, 1884.

On March 8, 1889, Williams made homestead entry of the land, and, on April 8th thereafter, Dorris filed his appeal from the action of the local officers allowing the same, and on the 19th of the same month his attorney filed a motion for the cancellation of Williams' homestead entry.

On May 22, 1890, you decided that Williams' entry "should be confirmed and the defendant's held for cancellation for conflict therewith." From that judgment Dorris again appeals, and assigns the following grounds of error:

1. In not holding that the cash entry of Dorris (No. 10,136, made June 7, 1884, under the 2d section of the act of June 15, 1880,) was, under the rulings then in force, a legal appropriation of the land and defeated the preference right claimed by Williams under the act of May 14, 1880.

2. In holding that after receiving information from the register that the Commissioner had canceled Dorris' entry, Williams was not required to tender his application within thirty days, and to appeal in case the register refused the same, in order to preserve his right.

3. In refusing to cancel the homestead entry of Williams.

4. Because said decision is in other respects contrary to the facts and law.

It is well settled in this Department, since the decision was rendered in the case of Freise v. Hobson (4 L. D., 580), that an application to purchase under the 2d section of the act of June 15, 1880 (supra), made after the initiation of a contest against the original entry, should be suspended until the final disposition of the contest. Roberts v. Mahl, 6 L. D., 446; Arnold v. Hildreth, 7 L. D., 500; Jones v. De Haan, 11 L. D., 261.

The controlling question in this case is, whether the contestant was

notified of the cancellation of the entry in the method designated by the second section of the act of May 14, 1880 (21 Stat., 140). That section gives thirty days from the date of such notice in which the successful contestant may make entry of the land, and it is insisted that the contestant failed to make his application to enter within the prescribed limit. Nearly five years elapsed between the date of the departmental decision directing the cancellation of the entry and the date of contestant's application to enter the land. This time was consumed in the proceedings incident to the appeal of the contestant from the action of the local officers in allowing the homestead entryman to make cash entry, as above set forth. The contestant was promptly informed of the action of the Department directing the cancellation of the entry; but he was also informed at the same time that the homestead entry would not be canceled, because the entryman had paid for the land.

While this condition existed, it was useless for the contestant to make an application, only to have it refused. He was informed in advance by the very officers, having jurisdiction to accept or reject his application, that they "declined and still do decline" to cancel the homestead entry.

The 2d section of the act of May 14, 1880 (supra), provides that:

In all cases where any person has contested, paid the land office fees, and procured the cancellation of any pre-emption, homestead, or timber culture entry, he shall be notified by the register of the land office of such cancellation.

The contestant was notified of the judgment of cancellation, but, in place also of being advised, as he should have been, that the entry was duly canceled in pursuance of the judgment and that he would have thirty days to make entry of the land, he was told that his rights as a successful contestant had been defeated by the defendant's cash entry, and that the homestead entry would not be canceled. The notice, which he did receive, was not a notice of cancellation, and he was therefore not in laches in failing to apply and make entry within the thirty days from its receipt.

After a careful consideration of the whole record, I find no sufficient grounds for disturbing the judgment appealed from, and the same is affirmed.

EVIDENCE-SECTION 7, ACT OF MARCH 3, 1891.

WEYHER v. SMITH.

A certificate by an officer that a certain instrument is recorded in his office, unaccompanied by a copy of said instrument, is not the best evidence of the terms and conditions of said instrument, and cannot be considered as legal evidence upon which final action may be taken.

Where a pending contest fails for the want of sufficient evidence to establish the alleged invalidity of the entry, and more than two years have elapsed since the allowance of said entry, it is confirmed by the proviso to section 7, act of March 3, 1891.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, November 2, 1891.

I have considered the case of William H. Weyher v. Benjamin F. Smith, upon the appeal of the latter from your decision holding for cancellation his pre-emption cash entry for lots 1 and 2, Sec. 24, T. 24 S., R. 33 W., Garden City land district, Kansas.

From the record in the case, I learn that Smith, having prior to the 10th day of December, 1885, complied with the requirements of the preemption law, on that day purchased from the register at the land office in Garden City, the land above described, paying therefor the sum of two dollars and fifty cents per acre, and received from him a final cercitificate, and from the receiver, a receipt in full.

On the 15th of February, 1887, Wayher filed affidavit of contest, alleging that said entry was fraudulent as Smith at that time was the owner and proprietor of more than three hundred and twenty acres of land in the State of Kausas and United States of America.

The hearing which followed resulted in a decision by the register and receiver, holding that the entry was illegal and should be canceled, and upon appeal to your office that decision was affirmed on the 17th of March, 1890. An appeal from your judgment brings the case to this Department.

In his pre-emption affidavit, made on the 12th of October, 1885, which forms part of his pre-emption proof, Smith swears that he has never had the benefit of any right under section 2259 of the Revised Statutes of the United States, and that he was not the owner of three hundred and twenty acres of land in any State or Territory of the United States, together with other statements required to be made.

At the trial, certain certificates were offered and received in evidence, notwithstanding the objections and exceptions of the counsel for Smith, which are attached to the record as exhibits in the case. The first of these certificates is signed by John J. Munger, register of deeds of Finney county, Kansas, and is marked exhibit "A," and reads as follows: I, John J. Munger, register of deeds of Finney county, in the state of Kansas, certify that there is on record in my office a final receipt granted to Benjamin F. Smith by United States land office under the signature of A. J. Hoisington as receiver, dated at Garden City, Kas., Nov. 28th 1884, and was filed for record on Dec. 15th 1886, and calls for the SW. 1-10-24 S., 33 W., containing one hundred and sixty acres, and that the records of my office show that no transfer has ever been made from said Benjamin F. Smith to any person by deed, mortgage or any other instrument of writing showing a transfer of title on this above described property, and that said Benjamin F. Smith has been since its date and is at this present date the sole owner of said premises, as shown by the records of this office. In testimony whereof I have hereto set my hand this June 20th, 1887.

A. H. Burtis, clerk of Finney county, makes a certificate which is marked exhibit "B", and which is as follows:

Our books show N. C. Jones purchased lots 1, 2, 3 and 4 in Sec. 16-24-33, containing 174 50-100 acres, for a total sum of $523.50. This purchase of school land shows of record to have been made by the said N. C. Jones on Oct. 29th, A. D., 1881, was

assigned to Benjamin F. Smith on the 22d day of July, A. D., 1882. The appraised valuation of the above described land was the same as the purchase price ($3.00) per acre. I certify the above to be a correct statement according to the records of my office. This June 20th, A. D., 1887.

Exhibit "C" was a statement from the treasurer of Finney county, that Smith had paid the taxes on certain lands in that county for the year 1886. In addition, there was set forth as exhibit "F" what purported to be a copy of an agreement between the Atchison, Topeka and Santa Fe Railroad Company and Smith for the sale by the company and the purchase by Smith of certain lands belonging to that company. The correctness of this agreement is certified to by a notary public of that county, who does not seem to have any official connection with the company or with any public office.

The counsel for Smith objected to all these exhibits, and protested against their being made a part of the record, and being considered by the register and receiver in making up their judgment, for the reason that they were not the best evidence in the case, and did not have even the force and effect of ex parte affidavits, and that title to land could not be proved in that way and by such evidence. Aside from these exhibits, the plaintiff submitted but little evidence, and when he rested the defendant's attorney moved to "dismiss the case for the reason that plaintiff has utterly failed to prove his allegation, and has nowhere shown that defendant was not qualified to make this cash entry on the 10th of December, 1885." The motion was overruled, and the defendant excepted.

In the case of Mark L. Campbell (4 L. D., 228) it was held that "ex parte affidavits cannot be considered as legal evidence, upon which final action may be taken." The best evidence to establish title to land is the deed of conveyance; next comes the record of such deed, and following that an authenticated copy of the record. A certificate by an officer that a certain instrument is recorded in his office, but does not give a copy of the instrument, is not the best evidence of the terms. and conditions of such instrument, and is not a proper basis for a judg ment in a case, and as was said in the decision cited, "cannot be considered as legal evidence upon which final action may be taken."

In the case of the St. Paul, Minneapolis and Manitoba Railroad Company v. Morrison (4 L. D., 509) it was said:

It is a general and well established rule governing in the production of evidence, that the best evidence of which the case in its nature is susceptible must be produced. Under this general rule it is held that “A title by deed must be proved by the production of the deed itself, if it is within the power of the party; for this is the best evidence of which the case is susceptible; and its non-production would raise a presumption that it contained some matter of apparent defeasance." (1 Greenleaf's Evidence, Sec. 32.) This would also be termed primary evidence; the general rule in relation to which is that "Until it is shown that the production of the primary evidence is out of the party's power, no other proof of the fact is, in general, admitted," (ib., 34); Ord v. McKee (5 Cal., 515).