Page:Federal Reporter, 1st Series, Volume 10.djvu/337

 PRESTON V. WAIiSH. 325 �and compact o£ annexation, the state of Texas has been and is without power by any law to impair the obligation of said contract or the trust resultiug therefrom. �(5) Xeither lapse of time nor any defence analogous to the statute of limita- tions can be set up by the trustee of an express triust as a defence to his ability to execute the trust. �(6) That while the ordinance adopted by the convention in 1845, (Hartley's Dig. 84,) afterwards ratified by a vote of the people, may have conferred pov^rer upon the law offlcers of the state to sue for, and jurisdiction on the courts to force forfeitures on, the colonization contracts, yet that the proceed- ings had and the judgment rendered in the district court of Navarre county, in the years 1847 and 1848, wherein A. G. Horton, acting governor, for the beneflt of the people of Texas, was plaintiff, and Charles Fenton Mercer and associates, unknown, were defendants, were absolutely null and void for want of legal notice to the defendants. �(7) That the state of Texas by law has never repudiated the contracts with Mercer, or the trust resulting therefrom. �(8) That the court of equity has jurisdiction to prevent by injunction the waste, alienation, or destruction of a trust estate. �(9) That while the circuit courts of the United States have no jurisdiction to entertain a suit against a state of the Union, they have jurisdiction of, and will entertain a suit brought by a proper party against, an oflaeer of a state, who, under color of his office, but without lawful authority, is wasting, alien- ating, or destroying a trust estate, although the state may be the trustee and romain silent. �(10) That in such a suit, where the state is no party, and yet 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 unlaw- ful conduct. �The firfit fiye of these propositions of law are laid down by Judge Woods, well supported by authority, and, as I have shown, supra, are the law of this case. The sixth proposition is undisputed law. Hollingsworth v. Barbour, 4 Pet. 476 ; Harris v. Hardeman, 14 How. 343 ; see Goodlove v. Gray, 7 Tex. 483 ; McCoy v. Crawford, 9 Tex. 353; Blossman v. Letchford, 17 Tex. 647; Hill v. Faison, 27 Tex. 428 ; Johnson v. Herbert, 45 Tex. 304 ; and the case of Treadway v. Easthurn, lately decided, (not reported.) The seventh proposition is shown by an examination of the varions laws of Texas cited on both sides in this case, and I might with safety go further than I have, and say that under section 10, art. 1, of the constitution of the United States, the state could pass no valid law impairing the obligations of Mercer's contract. The eighth and ninth propositions are fully sus- tained by the decision of the supreme court in the case of Davis v. Gray, 16 Wall. 203. The tenth proposition is a corollary legitimately following the decisions in Davis v. Gray and Hancock v. Waish. The ��� �