Page:Federal Reporter, 1st Series, Volume 10.djvu/329

 PKESTON V. WAL8H. 317 �pendente lite, and was heard and decided by my predecessor, Judge Woods, now circuit justice of this circuit. Justice Woods' decision covers many points, is full and elaborate, and is reported by him- self in Hancock, 3 Woods, 351. The points decided, as stated by the judge himself, are : �(1) A bill flled against the commissioner of the general land-office of Texas to restrain him from allowing locations ef land witliin the liniits of a grant made to a party under whom complainant claimed, and which was after- wards conflrmed by the state of Texas, is not a suit against the state. �(2) The colonization contract made by the republic of Texas, actihg by Samuel Houston, president, on January 29, 1844, with Charles Fenton Mercer, was valid and binding on the republic. �(3) By the terms of the joint resolution of the congress of the United States, for the annexation of Texas as a state in the Union, she was allowed, as one of the conditions of annexation, to retain the vacant unappropriated lands within her limits, to be applied to the payment of the debts and liabil- ities of the repUblic of Texas. This resolution having been assented to by the convention of Texas, it is not within her power to refuse compliance with its conditions. �(4) Whether the resolution of annexation and its acceptarice by Texas is to be considered as a treaty or contract, it is equally binding on the state, and she cannot escape from its obligations. �(5) A state may become a trustee. �(6) A trust assumed by the republic of Texas was not extinguished by the formation of the state of Texas and the annexation to the Union, but was fastened upon the state aa the sovereign successor of the republic, �(7) Neither lapse of tiine, nor any defence analogous to the statute of lim- itations, can be set up by the trustee of an express trust as a defence to his llability to execute the trust. �An examination of the full opinion will show that each of these propositions is fully decided upon reason and sustained by authority, as well as many other questions not stated in the syllabus. �So far, then, as any of these questions now come up for consider- ation in determining the rights of the parties now before the court, they must be taken as settled for this case in this court, if for no other case nor any other court. And for further authority see Aurora City V. West, 7 Wall. 99. �Since the decision on the demurrers and the motion for prelimi- nary injunction the complainant has, by leave obtained of the court, filed an amended bill. Said amended bill, in addition to the matters previously alleged in the original bill and in other bills of revivor and supplement, charges : ��� �