The answer of the defendants does not allege that the moneys for which the court rendered judgment against them were received by Potter after September 23, 1873, and during the absence of Brashear, the register. Neither does the bill of exceptions profess to state all the evidence in regard to the absence of Brashear and Potter from their offices respectively. Passing by these defects in the record, we shall consider the question presented by the exception of defendants. Their first contention is that they are not responsible for any moneys received by Potter, the receiver, during the time that Brashear, the register, was absent from the land-office. The ground of this contention is as follows: The record shows that during Potter's term of office all sales of land were either by pre-emption or commutation of homesteads. The argument of plaintiffs in error applies only to pre-emption sales. Section 2259 of the Revised Statutes of the United States prescribes what persons are entitled to pre-emption and upon what terms the right of pre-emption is accorded to the settler upon the public lands. Section 2263 declares that 'prior to any entries being made under and by virtue of the provisions of section 2259, proof of the settlement and improvements thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie,' etc. The plaintiff in error contends that these officers constitute a joint tribunal, and that there can be no business done without the presence and action of both. And as Brashear, the register, was absent from September 23, 1873, to the close of Potter's term, there could be no legal pre-emptions during that time, and that all moneys paid for pre-emptions before the conditions prescribed by law had been complied with, were not payments made to the United States, but unauthorized and unofficial payments made to the receiver, for which his sureties were not liable.
In our judgment this contention has no ground to stand on. There is no expression in the statute which requires the register and receiver to sit at the same time and concurrently pass upon the sufficiency of the proof of settlement and improvement by pre-emptors. If the proof is submitted to the register on one day and he is satisfied, there is nothing in the statute which implies that it may not be lawfully submitted, at some subsequent day, to the receiver for his approval. The oath of the pre-emptor, which is part of the proof required by law, may be taken before either the register or receiver. Section 2262; Lytle v. State, 9 How. 314. They are nowhere required to meet and jointly consider the sufficiency of the proof offered. If both are satisfied, that is all the law requires.