Page:Federal Reporter, 1st Series, Volume 10.djvu/331

 PRBSTON V. WALSH. S19 �laiid-office clearly show orator and the Texas Association are entitled to have and receive, and that until such delivery o£ certificates and patents there is no Quty deyplving upon any other offleer or departraeut of the government of the state, nor upon orator, nor the Texas Association, under the terms of the Mercer eontract. �And the bill prays — �For a discovery for the perpetuation of the preliminary injunction ; for a further injunction reslraining defendant, as general land commissioner of the State of Texas, from issuing certificates or patents for any of the vacant and unappropriated lands of the state, within or without the limits of the Mercer colony grant, until orator's just demands are satisfied; for a mandatory in- junction compelling the defendants to issue patents to orator for the use of the Texas Association, covering about 2,752 sections of land as grants,pre- miums, and pre-emptions within the limits of the Mercer colony; or, if not found thereln, then for an equivalent from the other vacant lands of the state, and for general relief, etc. �The defendant filed a plea in bar, and a disclaimer and answer, and a motion to dissolve prier to the filing of the amended bill. �After the amended bill he filed a general answer, which, of course, waived his pleas, and the original answer was merged in the last formai sworn answer. �This answer, containing the whole defence exhibited, sets up : �(1) A deniai of performance on the part of Mercer and his associates of the varions obligations devolving upon them under the contract speciflcally, to-wit: a. That Mercer never introduced settlers, as bound by his contract. b. That he never made the surveys, and furnished the plats, maps, fleld-notes, etc. c. That he never built the cabins or small houses. d. That he never furnished and kept on hand the ammunition supplies, e. That 'bis settlers were uot armed with rifle, yager, or musket. /. That he did not make the reports re- quired by the contract. g. That he and his associates did not obtain the act of incorporation required. �(2). That Mercer and his associates were required bya joint resolution of the republic, approved February 3, 1845, to have the Unes of that colony land actually surveyed and œarked by April 1, 1845, under pain of forfeiture; and that therein Mercer and his associates failed. �(3) That the map bearing date May 1, 1845, filed with bill marked Exhibit E, appeared to be of recent date, and had been surreptitiously deposited in the office of the secretary of state, without the knovvledge or cousent of the offleer, and that said map was not made in accordanee with the contract, did not give the correct boundaries or limits, and took in about 3,000 square miles more than the contract covered. �(4) That the contract was made against the will and in contempt of the people of Texas, having been made after both houses of the legislature had passed a bill repealing the authority theretofore given the president to make such contracts, and only the day before such bill became a law by passing ��� �