Page:Federal Reporter, 1st Series, Volume 10.djvu/328

 316 FEDERAL REPORTBR. �6. CEKTAm PnOCEEDINOS AND JUDGMBNT VoiD. �The proceedinga had and the judgmeit rendered in the district court of Navarro county, in the years 1847 and 1848, wherein A. C. Horton, acting gov- eruor, for the benefit of the people of Texas, was plaintifE, and Charieii Fenton Mercer and associates, unlsnown, were defendants, were absolutely uuil and void for want of legal notice to the defendants. �6. Texas— CoNTEACTs— Trusts. �The State of Texas, by law, has never repudiated the contracts with Mercer, or the trust resulting therefrom. �7. Equity Jubisdiction — Injunction. �The court of equity has jurisdiction to prevent, by injunction, the waste, alienation, or destruction of a trust estate. �8. Jubisdiction dp Ffderal Courts. �While the circuit courts of the United States liave no jurisdiction to cnter- tain a suit against a state of the Union, they have jurisdiction of, and will entertain a suit brought by, a proper party against an officer of a state who, under color of his office, but without lawful authority, is wasting, alienating, or destroying a trust estate, although the state may be the trustee aad remain silent, �Davis Y. Gray, 16 Wall. 203. �9. Bame— Equity Pleading. �In such a suit, where the state is no party, and yel is declared to be the trustee of an express trust, the defendant is without right or interest to plead in defence a repudiation by the trustee, to shield himself from uuiuwful conduct. �10. Same — SPEcnric Pbrfotimance— Decree por Title. �Where the relief asked is in the nature of specifie performance of the con- tract, or, at least, a decree for title, it is imperative that the party required to perform, or who holds the legal title, should be before the court ; and such party, who is in this instance the state of Texas, not being a party to these proceedings, this court has no jurisdiction to grant such relief. �In Equity. �Broion, Preston, Hancock e West, for complainani;. �Peeler d Maxey and Willsnn de Saines, for defendant. �Pabdbe, C. J. Justice Field, on the ninth circuit, in the case of Gole Silver Mining Co. v. Virginia e Gold Hill Water Co. 1 Sawy. 68.5, refused to hear questions of law previously determined by the circuit judge in the same case, saying: �"The circuit judge possesses equal authority with myself in the circuit, and it would lead to unseemly conflicts if the rulings of one judge upon a question of law should be disregarded, or be open to review by the other judge in the same case." �The proposition, so evident upon its face, acquires greater force when the aircuit judge is called upon to consider the rulings of the circuit justice in the same case. See 2 Fish. Pat. Cas. 120. This case has been before this court for hearing upon demurrer and for injunction ��� �