of the relinquishment are necessary to give it any effect, and until this is done there is no right to lieu land and hence no right to assign. Hyde had no title to the tract described by Belden's deed, had nothing to relinquish, and had no right of selection. His application can not therefore be recognized. Considered as his application alone, it should have been rejected. Inasmuch, however, as both Hyde and Belden now aver that such application was made by the direction of the latter and for his benefit, and since, furthermore, the relinquishment and selection have been presented by Belden himself, as owner of the tract, the case will be considered as if upon the application of Belden from the beginning.

In conclusion it was held:

Where an exchange of land is sought under the act of June 4, 1897, supra, the relinquishment and selection can be made only by the claimant or owner of the land within the limits of the forest reservation.

This ruling is fully sustained by the language of the law, which is that "the owner" may relinquish and "may select," and by every consideration of good administration. If it had been intended to create a floating right different language expressing such intention would have been used. That Congress might have so provided can not be doubted, but that it intended to do so is clearly negated by the language used. The contention of appellant in this particular can not be sustained. Because of this conclusion it is not necessary to consider the form of the instruments under which appellant claims or to determine their sufficiency to constitute him an assignee of the claimed right.

It is insisted that if the application to select as assignee be not recognized, then the appellant should be given time and permission "to obtain from the various persons named duly executed powers of attorney authorizing the location of the scrip in their names respectively." The presentation of applications in the names of the respective owners of the relinquished land could not be held to relate back and be effective from the date of presentation of McCornack's unauthorized and invalid application. Such new application would take effect only from the date of its presentation accompanied by the required proofs, especially as to the character and condition at that time of the lands applied for. Even if it were held that the applicacations now before the Department might be perfected by substituting the names of the respective owners of the relinquished tracts for that of McCornack, the proofs would have to be brought down to the date such substitution was made and rights under the substituted applications would be determined under the facts shown to exist at that time. The decisions of the Department to this effect are too numerous and the rule is too well established to require citation of any cases so holding.

In some cases applicants have been allowed time to make corrections in the papers pertaining to their applications and to supply admissions, but these have been in respect of formal or unessential matters and

the privilege has been given as a matter of grace and not as a matter of right. Here there is no application capable of being perfected. Neither Phillips nor Todd has a foundation application upon which to base a request to be allowed to cure defects or supply omissions. Any proceedings in their behalf must begin with the initial act of presenting a formal application and their rights must be determined as of the date when such application may be presented accompanied by the required proofs.

If applications be hereafter presented in the names of the owners of the relinquished tracts they will receive due consideration and be disposed of under the law and the decisions governing such cases.

For the reasons given the decision of your office rejecting McCornack's applications is affirmed.

HOMESTEAD-INSANE ENTRYMAN-SECTION 441, REVISED STATUTES.

THOMPSON. SWELANDER.

The power vested in the Secretary of the Interior by section 441, Revised Statutes, to supervise all proceedings instituted to acquire portions of the public lands, includes authority to inquire into the mental capacity of an entryman to make entry.

The test of mental capacity to make homestead entry is whether or not the entryman possesses sufficient mind to have a reasonable perception of the nature, effect and legal consequences of his act in making the entry.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) April 30, 1904.

(D. C. H.)

On October 15, 1896, Louis A. Swelander made homestead entry for the SE. of Sec. 20, T. 128 N., R. 50 W., Watertown, South Dakota. On November 5, 1901, Thomas P. Thompson filed contest against said entry, alleging that said entry was and is fraudulent, speculative and void, for the reason that for many years prior to the making of said entry the said Louis A. Swelander was and ever since has been a hopeless and confirmed idiot and imbecile, incapable of making a valid homestead entry, and of complying with the requirements of the homestead laws, and that said entry was in fact made for the benefit of Alfred Swelander, the father of the said Louis A. Swelander, and was therefore wholly speculative and could not have been made during any or all of said time for the personal use and benefit of the said Louis A. Swelander because of his mental incapacity.

Notice of contest issued and appears to have been served on the entryman and his guardian, Alfred Swelander. At the hearing both parties submitted testimony, the plaintiff appearing in person and by attorneys, and the defendant appearing by guardian and attorneys. The local officers found in favor of the plaintiff on all the issues of the

contest and recommended that the entry be canceled. Upon appeal, your office, on September 8, 1903, affirmed the findings and recommendation of the local officers and held the entry for cancellation. The claimant has further appealed to the Department specifying errors in substance as follows:

(1) Error in holding that it is within the province of the Department to determine the mental capacity of the entryman under the charge that he is an idiot and incompetent to enter public lands.

(2) Error in admitting in evidence and considering the testimony and other proceedings in the county court of Roberts county, South Dakota, in the matter of the guardianship of Louis A. Swelander.

(3) Error in finding and holding that the entryman ever since childhood had been an imbecile and wholly incapable of making a homestead entry or understanding and comprehending its nature, requirements, legal effect or consequences.

(4) Error in finding and holding that the entry in question was made in the interest of Alfred Swelander, and for his use and benefit.

The case is correctly stated and all the material facts sufficiently set forth in your said decision.

First. The appellant relies upon the decision of the Department in the case of Olmstead . Miller (15 L. D., 399), and contends that under said decision the Department is without authority or jurisdiction to inquire into and investigate the charge of idiocy or mental incompetency of the entryman in this case, and that this question can alone be tried and determined in accordance with the laws of South Dakota where the defendant resided at the time the entry was made and where he still lives. It is true that in the United States the question of jurisdiction and the procedure in lunacy cases are for the most part regulated by statute. In a number of the states the probate courts have jurisdiction, in others the county courts, while in a few states this jurisdiction still remains with the courts of chancery. In some of the states in proceedings to declare a party a non compos mentis the inquisition, or judicial finding, must show not only that the party is of unsound mind at the time the appropriate tribunal is called upon to act in the matter, but must also show how long the mental incapacity has existed, and also whether or not the party enjoys lucid intervals. The laws of Dakota providing for and regulating the appointment of a guardian for the insane or incompetent person seem to confine the inquiry alone (as was done in this case) to the ascertainment and determination of the mental condition of the party at the time the county court is called upon to act in the matter. While the decision in Olmstead. Miller, supra, appears to support the position assumed by the appellant and to deny the Department the authority and power to inquire into and determine the mental competency of an entryman, yet in the prior case of Alden 2. Ryan (12 L. D., 690), not overruled,

the Department held that its jurisdiction to determine the validity of a claim to public land involved and carried with it the necessary authority to determine the validity of a relinquishment, and for such purpose to ascertain by proceedings of its own whether the person executing such instrument was of sound mind; and in the later case of Mefford . Carver (18 L. D., 208), where the charge against the defendant therein was strikingly similar to the charge in the case at bar, the Department considered and passed upon the evidence as to the entryman's mental condition, and thereby asserted its jurisdiction in the

matter.

"There is no wrong without a remedy," and as the laws of Dakota provided no means by which the mental condition of the defendant at the time the entry in question was made could have been ascertained, unless the Department has authority and power to inquire into and determine the entryman's mental capacity, the plaintiff in this case would not only be deprived of his right to prosecute his contest but the government in this, and other like cases, would be utterly powerless to defend itself against injustice and fraud.

By virtue of statutory authority, section 441 of the Revised Statutes, the Secretary of the Interior is invested with full power to supervise all proceedings instituted to acquire portions of the public lands, and surely it can not be that in matters involving the mental capacity of the entryman, and assailing the very integrity of an entry, the Department is ousted of its said jurisdiction and made to depend entirely upon the machinery of the State court to determine such questions for it, and that too when the law of the State, as in the case at bar, has provided no appropriate mode of procedure for ascertaining the real facts and determining the question at issue.

Second. While the record of the proceedings in the Dakota county court relative to the appointment of the guardian of the defendant in this case can not be used for the purpose of showing that defendant was a non compos mentis, or a person of unsound mind, at the time of the making of the said entry, said proceedings may be admitted to show his mental condition at the time they were had, and may be considered as throwing some light on the question under consideration. Third. The test of mental capacity is whether or not the person possesses sufficient mind to understand in a reasonable manner the nature and character of the act in which he is engaged. The evidence in this case clearly establishes the fact that the entryman was of unsound mind at the time the entry in question was made and that this unsoundness of mind was of such a character that he could have no reasonable perception of the nature, effect and legal consequences of the said act, and the testimony further shows that said incompetency existed for many years prior to the time the entry was made and continued without interruption up to the date of the hearing, except to

become gradually worse as defendant advanced in age. The evidence also justifies the conclusion arrived at by the local officers and by your office that the entry although made in the name of the son, Louis A. Swelander, was in fact the act of the father, Alfred Swelander, and made for his use and benefit.

From a careful examination and consideration of the entire record, no reason appears for disturbing the decision appealed from and it is therefore affirmed.

HOMESTEAD-SOLDIERS'

ADDITIONAL-COMMUTATION-RECERTIFICA

TION.

JOHN H. HOWELL.

Where entry under a certificate of soldiers' additional homestead right, issued under section 2306, Revised Statutes, was commuted under section 2301, Revised Statutes, prior to the act of June 5, 1900, the claimant under said certificate is entitled, under the provisions of said act, to a recertification of said right, which he may again locate as though the former entry thereunder had not been made. Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) April 30, 1904.

(S. V. P.)

On March 10, 1881, a certificate of soldiers' additional right of homestead entry was issued to John B. Barlow for eighty acres, under section 2306 of the Revised Statutes, with the requirement endorsed thereon of residence on and cultivation of the land to be entered thereunder.

On February 27, 1882, Barlow located said certificate on the SW. of the SE. of Sec. 17, T. 23 N., R. 31 W., Springfield land district, Missouri, containing forty acres, leaving unused forty acres of said certified right.

April 21, 1883, Barlow made commutation proof in support of his said additional entry, and on April 26, 1883, paid to the receiver one hundred dollars as the commutation price of the land, and received commutation cash certificate therefor, on which patent was issued to him on May 15, 1884.

On May 21, 1899, an endorsement was made on the certificate of March 10, 1881, showing that the additional right therein certified had been exhausted to the extent of forty acres, and the unused portion, being for forty acres, was recertified.

It does not appear what disposition has been made of the last named certificate, but on August 12, 1902, Barlow sold and assigned to John H. Howell Whatever right he [Barlow] may yet have in and to the forty acre portion of said certificate that was located by him on the land above described."

On August 29, 1902, Howell applied to your office for the recertification to him of the right of additional entry originally certified to