Page:Federal Reporter, 1st Series, Volume 10.djvu/335

 PRE8T0N V. WALSH. ���323. ���Birong presumption that they were settlers there lawfully ; tha,t is, under Mercer and the Texas Association, not as trespassers and squat- ters. Besides this presumption, I do not regard it as absolutely nec- essary that every settler who located in the Mercer colony should have been previously personally solicited and induced thereto by Mercer oi his agents. The oontractors could not have so contemplated. One settler would naturally induce others, and the advertisementa and maps and advantages and improvementa would certainly aid in the scheme of colonization and settlement. �The depositions offered by the defendant upon this subject (which are amenable to the charge of incompetency, as hearsay evidence, and thougb given full force as evidence) are not strong enough to rebut this presumption in favor of law and order. The witness knew, had heard, of no one who claimed to have been induced to settle by Mer- cer or his agents, or under the Mercer colony grant. And it might be noticed, under the law of 1850, it was not necessary, in order to receive the donation offered by the state, that they should claim under Mercer. And it is plausible to say that, under the hostile attitude evinced by the people of the state at that time towards the coloniza- tion contract, many settlers might have been deterred from clain: ing under obnoxious titles, particularly when such claim was wholly unnecessary. �The allegations in the amended bill of complainant are also, in the main, established, except in relation to the conspiracy alleged between the defendant and Gov. Eoberts, and in relation to the charge of contempt for violation of the injunction heretofore issued in the case. Upon this last-mentioned matter the proof fully exonerates the defendant. �The defendant shows by the depositions of various witnesses, mostly old settlers, that Mercer and his associates had not complied with the various stipulations and details of the contract in many small matters, 80 far as the knowledge of the witnesses extended ; but this evidence is negative, and at this late date it can hardly raise a presumption even of non-eomplianee. In relation to this it may be well to notice that by the terms of the contract a forfeiture or determination of the contract was only to resuit from non-performance, on the part of Mercer and his associates, in relation to the introduction of a cer- tain number of familles within certain fixed periods, — for instance, 100 familles by May 1, 1845; 250 families within two years; and 150 families within each of the remaining three yeara the contract ��� �