facts as stated, and the publication was for ninety days instead of eighty-nine, that raises the vexed question whether the first or last day, or either, should be excluded in the computation; and upon that point the authorities are numerous on both sides, although it is the rule of this department that the first should be excluded. (Eureka case.) But this objection, if made at all, should have been made before patent, and it is too late to make it after the patent has issued. (Curtis on Pat., sec. 274.)

4. It is also objected that the proof of posting the notice and diagram on the claim does not show when, where, or for what period the same was posted.

The counsel who make this objection refer to the affidavit of John Dobbie and George Murray to sustain the same.

These persons both state "that of their own certain knowledge they are aware that a certain diagram was and has been posted for the period of ninety days, subject to the inspection of all whom it may concern, upon that certain mining ground lying, being, and situate in Silver Fork, Big Cottonwood canyon, Big Cottonwood mining district, Salt Lake county, Territory of Utah, and known and recorded as the Prince of Wales lode; and that said diagram is a true and correct copy as made from survey of said ground, and now on file in the land office in Salt Lake City, said survey and diagram having been filed for the purpose of securing and obtaining a United States patent for the premises as herein before mentioned, viz., The Prince of Wales, by Thomas Butterwood,'" etc.

This affidavit is not as specific as it should have been as to when the period of ninety days commenced, but the objection should have been made before patent.

5. It is objected that the applicants for patent did not have the title to the claim at the time the application was made, and that they did not acquire it for some time thereafter, and that, therefore, their application was absolutely null and void.

It is clearly shown that they acquired title in due form by conveyances before the patent issued. It is not shown that they had no interest in the claim at the time the appli cation was made, but on the contrary it is alleged by counsel that they had contracts for conveyances before the

application was made. This is highly probable. It is extremely improbable that business men would commence an application of this kind without having any interest in the premises or mine claimed.

Tille acquired before issue of patent.

If they acquired full title, as they did before the patent issued, it is pot void, and the irregularity is not such as would justify commencing proceedings to set aside the patent.

6. It is further objected (and this is the last objection insisted upon) that the application for patent was made by Thomas Butterwood et al., but that the final certificate of entry was issued to Thos. Butterfield et al., and that as the patent issued to Thomas Butterwood et al., it is illegal and void.

The

Thomas Butterwood was, without the possibility of a doubt, the true name of one of the applicants. His name and his genuine signature appear frequently in the papers. There is nothing to show that he ever transferred or pretended to transfer his interest to Thomas Butterfield. officer in issuing the final certificate, by inadvertence and mistake, issued it to Thomas Butterfield et al., when he intended to issue it to Thomas Butterwood et al. I entertain no doubt upon this point, and I am equally clear that this clerical error ought not to and does not affect the validity of the patent.

THE WANDERING BOY.

1. It is objected that the location and application for patent and final survey do not agree.

The notice of location is as follows:

"Notice is hereby given that we, the undersigned, claim fourteen hundred (1,400) feet on this lode, lead, or mass of ore for mining purposes, supposed to run in a north-easterly and south-westerly direction, situated about three hundred feet east of the Antelope, in the head of Silver Fork, Big Cottonwood canyon, Big Cottonwood mining district, claimed with all dips, spurs, angles, variations, metals, and minerals along the course of the ore wherever it may extend, together with all the privileges granted by the laws

of the United States and the local laws of this district. Located August 6, A. D. 1870. To be held jointly and undivided, discovery included. Claim nine hundred feet up the bill, and five hundred feet down the hill from discovery.

"W. S. Hullinger,

"L. B. Clements,

"A. Livingston,

John M. Davis,

H. C. Hullinger,

A. D. Hullinger,

"Wm. McGhie."

The application for patent describes the premises as follows:

"We * * * do claim fourteen hundred (1,400) feet in length by eighty-five (85) feet in width on the Wandering Boy lode (being a silver-bearing vein of rock in place), and the land and premises appertaining to said mine, * * * the location and extent thereof being more fully described as follows, to wit:

"The discovery shaft is N. 17° E. 1,928 feet from U. S. mineral monument No. 1, and about 70 feet southerly from the main shaft of the Prince of Wales lode at the head of Silver Fork canyon; thence S. 69° W. 300 feet; thence S. 51° 30′ W. 200 feet to the south-westerly end of the vein, the shaft of the Highland Chief mine bearing north-westerly; return to discovery shaft; thence N. 69° E. 280 feet to summit of divide between Silver Fork and Honey-comb canyons; thence N. 34° 30′ E. 620 feet to north-easterly end of mine."

In this case, as in the Prince of Wales, resort has been had to parol evidence to determine the location of the claim. Four deputy mineral surveyors and their four attendants swear that the location, application for patent, and final survey are for substantially the same premises, and I find from the testimony that their statements are true, and I therefore overrule this objection.

2. It is objected that the proof of publication does not state the last day of publication, and therefore does not show that the law was complied with.

The affidavit of Frank Kenyon, editor of the paper in which the notice was published, states that "the attached notice was published in the Salt Lake Review for a period of ninety days, commencing August 15, 1871." I think this

was sufficient prima facie proof. The objection is overruled.

3. It is objected that the notice and diagram were not posted on the claim until five days after they were filed in the land office, and five days after the publication had been commenced.

The proof shows that they were posted on the claim for more than ninety days, commencing on the twentieth day of August, 1871. They should have been posted before the publication, but the omission was an irregularity only, and was not fatal.

4. It is alleged that upon a survey including an area of two acres an entry was made, and the two acres paid for, and that subsequently the survey was modified so as to include an area of two and seventy-five one-hundredths acres, and that a patent issued in accordance with the modified survey, without correction of certificate or payment for the three quarters of an acre.

This would result in depriving the government of five dollars.

Perhaps it would be sufficient to answer de minimis non lex curat; but as I understand the matter, the final survey, after deducting the premises belonging to the Prince of Wales and paid for by it, will leave just about two acres, which was the amount paid for by the Wandering Boy.

5. It is alleged that the patent issued without proof that the original locators were citizens of the United States.

It is not claimed that there was proof that the applicants for the patent were not citizens.

It

It has not been the practice of the land office to require proof that the original locators were citizens, except in those cases where they were the applicants for patent. will not be presumed that they were not citizens, in the absence of any allegation or objection before the issuing of patent to that effect. After patent has actually issued it is too late to make this objection. (Kempton case.)

6. It is objected that the patent illegally recites that the prior patent for the Highland Chief, for the premises in conflict, was inadvertently and erroneously issued.

I think that the patent to the Highland Chief for said. premises did inadvertently and erroneously issue, and that

it was proper to recite that fact and issue another patent to the Wandering Boy for said premises.* (Stark v. Starrs, 6 Wall. 402; Henshaw v. Bissell, 18 Id. 264). But as counsel for the Highland Chief strenuously contend that a second patent can not properly issue, and as there can be no question about the right to proceed in the name of the United States to set aside a patent improperly granted, I have concluded to request the Attorney-general to institute such suits in behalf of the Prince of Wales and Wandering Boy.

I will notice, in passing, the objection that has been urged to the application in case of the last-named mine, on the ground that Moore & Co. had transferred all their interest in the mine to Walker et al., before this application was made.

I find from the exhibits before me that Moore & Co. still have some interest in seeing that the patent to the Wandering Boy is unclouded, and I think that interest sufficient to support their application.

THE ANTELOPE LODE.

The location of this lode was made on the fifteenth of June, 1870, and recorded June 18, 1870. It was as follows:

66

"THE ANTELOPE LODE. "June 15, 1870. Miner's Notice.

'We, the undersigned, claim (3,000 ft.) three thousand feet in this ledge or lode, with all its dips, angles, spurs, and variations, to be known as the Antelope lode. Also, (200 ft.) two hundred feet discovery, running (1,000 ft.) one thousand feet easterly, 2,000 westerly direction, situate at the head of the first south fork below mill, known as Mill F, in the right-hand fork of said fork.

"Discovery.

"Levi H. North, Levi North, C. A. North, H. B. North, Marari North, E. H. Williams, H. B. Fuller, A. L. Fuller, R. Miller, A. Ivans, John M. Cook, John Cook, Wm. H. Homer, A. J. Alexander, W. S. Hullinger."

* See Moore v. Robbins, 6 Otto, 530; also, decision of the G. L. O., Sierra Nevada Co. v. Union Consolidated Co., No. 13, wherein this rule is changed. NOTE. This decision is given because of the interesting points decided under the act of 1866. The practice of issuing second patents, while the first remains outstanding, has been discontinued in the General Land-office.