an equivalent device or instrumentality. Water-meter Co. v. Desper, 101 U. S. 332, 337; Gage v. Herring, 107 U. S. 640, 648; [S. C. 2 SUP. CT. REP. 819.]

The circuit court decreed a dismissal of the bill, and, the plaintiff having appealed, the decree is affirmed.

(109 U. S. 297)

WALSH, Com'r, etc., v. PRESTON.'

PRESTON V. WALSH, Com'r, etc.1

(November 19, 1883.)

A. J. Peeler, for Walsh, Com'r.

Wm. Preston, John Mason Brown, and Geo. M. Davie, for Preston. *HARLAN, J., dissenting. Mr. Justice FIELD and myself differ from. the court in our view of the facts of this case, and therefore dissent from its judgment.

The circuit court found that the complainant had satisfactorily established the contract between the republic of Texas, through its president, and Charles Fenton Mercer and his associates, as alleged in the bill and amended bill; the entrance of Mercer upon the duties devolving upon him under the contract; the organization of the Texas Association; the appointment of surveyors and colonization agents; the running of lines and surveys; the introduction of 119 families within the first year of the grant; the making of the survey of the boundary limits of the colony grant by April 1, 1845; the settlement of 256 families within the limits of the colony prior to October 25, 1848; the appointment of Mercer as chief agent and trustee for the association; the subsequent oppointment of Hancock as chief agent; Hancock's death and the appointment of Preston, ratified by the association, as chief agent; the entrance of those persons upon the performance of their duties as agents of the association, and the activity displayed by them, respectively, in furthering the objects and interests of the colony and the association; the employment of counsel; the expenditure of money; and the persistent applications made to the political departments of the state of Texas for relief. It further found that Mercer, as agent, made reports to the government of Texas, as required by the contract up to and for the year 1847; that Mercer is dead long since; and that all his papers and documents, among which were copies of his correspondence and reports in relation to the Mercer colony, have been lost and destroyed.

The evidence adduced by the complainant has, it seems to us,

1 See 8. C. ante, 169.

been subjected by this court to the same rules of strictness and technicality which would be applied to an indictment for a criminal offense. We are of opinion that the circuit court did not misapprehend the effect of the testimony, and that a case is made entitling complainant substantially to the relief granted in the decree below. By the contract between Mercer and the republic of Texas the latter agreed to convey to the former and his associates, or their legal representatives, one section of 640 acres of land, or two half sections of 320 acres, for each family which they should introduce and settle upon the lands set apart for colonization by Mercer and his associates, each alternate section or half section of 640 or 320 acres being reserved to the republic, to be purchased or not by Mercer and his associates on certain stipulated terms. It was also agreed that a perfect title should be made in the usual mode and form to Mercer and his associates, or their legal representatives, for each section, half section, or other fractional part of a section to which they become entitled under the contract, and that the same should be conveyed to the parties as soon and whenever they should exhibit to the commissioner of the general land-office of the republic, or other proper officer thereof, in the manner and form prescribed in the contract, the evidence of having surveyed the portion of land for which such conveyance was desired, and that there were comfortable small houses or cabins erected thereon, and families residing therein who had been settled thereon by Mercer and his associates or their legal representatives.

The republic of Texas further agreed that Mercer and his associates should receive from it, as further compensation for their services and for their labor and expense in introducing and settling the families provided for in the contract, a premium of 10 sections of 640 acres or 20 sections of 320 acres of land for every hundred families inProduced and settled as required; further, that upon Mercer and his associates paying into the public treasury $12, and obtaining the treasurer's or other proper officer's receipt for that sum paid into the same, and also of the delivery for cancelment of any bonds, promissory notes, or other audited liabilities of the republic to the amount of $640, they or their legal representatives should be entitled to demand and should receive from the government a full and absolute title to 640 acres of the reserved alternate sections. The right to purchase the alternate sections was, however, made to depend on certain conditions, which, in the view taken of the case by the court, need not be here set out.

It was provided in the contract that whenever Mercer and his associates, or their authorized agent or legal representative,—

"shall exhibit to the commissioner of the general land-office of the republic a certificate, under oath, subscribed by two witnesses, and certified by some person qualified by the laws of Texas to administer an oath, that the said parties of the second part, or their legal representatives, have caused to be built a small comfortable house or cabin, or any number of such houses or cabins, on

the parcel or parcels of land which they are obligated by this contract to convey to each family, or the several families respectively, and have actually settled a family or several families respectively th ein, they shall immediately receive thereafter a full and absolute conveyance from the government of the republic for as many sections of land of 640 acres, or half sections, or other fractional parts of sections equal in amount to 640 acres, as there shall be families certified to in such certificate or certificates."

It was further provided that the unlocated lands included in the boundaries described in the contract should remain and be held by the government of the republic, for the purposes set forth in the contract, until the end of five years from its date, and "shall be considered as set apart, exclusively of all future claims, to be colonized in the manner aforesaid, by and for the benefit of the party of the second part and of this republic." It was also stipulated that unless Mercer and his associates, or their legal representatives,


"shall, prior to the first day of May, 1845, have introduced and settled on the land above mentioned, according to the tenor of this contract, one hundred families, all right and title of the party of the second part, or their legal representatives, to proceed further in the execution of this contract shall cease and determine from the moment of such default; but such default shall not work or operate retrospectively, but leave to the party of the second part, and all persons claiming under them, whatever right, title, or interest they may have acquired from the action of the party of the second part and their legal representatives prior to such default, to the same extent as if no such default or failure had occurred; and in like manner, and under like qualifications, the right of the said party to proceed further under this contract shall cease and determine: provided, 250 families be not introduced and settled by them, in manner aforesaid, on or before the expiration of two years from the date thereof; and so in like manner 150 additional families shall be settled on the said lands, according to the terms of this contract, by the said parties of the second part or their legal representatives, within each of the three remaining years, or the right of the said party to proceed further under this contract, through the full term of five years from the date hereof, shall, on the occurence of any default as aforesaid, utterly cease and determine: provided, as before expressed, no such default shall operate otherwise than prospectively, either in relation to the said second party to this contract, or to the emigrant families actually settled, or any person or persons claiming by, through, or under them, or any of them."

To what extent did Mercer and his associates comply with their contract? The inference to be drawn from the opinion of the court is that the record furnishes no evidence whatever that Mercer and his associates did anything of a substantial character entitling them to the benefit of their contract with the republic of Texas. But we are of opinion that this is an erroneous view of the evidence. We cannot avoid the conclusion that the contrary is abundantly shown by the record. That Mercer and his associates introduced and settled 119 families prior to the first day of May, 1845, the evidence leaves on our mind no reasonable doubt. There was produced from the records of the general land-office of Texas, certified by the commissioner of that office, a copy of what is styled the original agreement or covenant, signed by the heads of that number of families,


showing the date of their introduction into and settlement upon the Mercer colony lands, the signature of each emigrant being duly witnessed. That agreement is in these words:

"This instrument witnesseth that the persons who have subscribed and undersigned their names hereto do hereby severally, but not jointly, agree and covenant as follows, to-wit:

"That each of us has received of Charles Fenton Mercer and his associates, known as and comprising the 'Texas Association,' a certificate issued in accordance with a contract made on the twenty-ninth day of January, A. D. 1844, between them and Sam Houston, then president of the republic of Texas, acting in behalf of the said republic, authorizing them, among other things, to introduce and settle emigrant families upon the lands within the limits specified in said contract; the number and date of each certificate granted by said association, and by us received, being expressed and written in spaces to the left hand of our respective names, which certificates are received and held for the benefit of the respective families mentioned therein, each one of us forming a member of the family described in the certificate delivered to him, which families have been specially introduced and settled at the times and in manner and form as stated and expressed in said certificates respectively by the said Mercer and his associates, and have emigrated as the said certificates declare and show. And in consideration of the premises, and the benefits from said certificates and the contract aforesaid, accruing and to arise, that we will severally observe and perform, as far as may be in our power, the several duties and requirements devolving upon us as settlers under said contract, whether prescribed by the terms thereof, or by the laws of the land in such behalf especially. * We bind ourselves severally not to give, sell, or in any way furnish to any Indian any spirituous liquor, nor any gunpowder, lead, or fire-arins, or warlike weapons of any description; and, moreover, to abstain from any waste or trespass upon the half sections adjoining those on which we have respectively settled, and on the whole sections adjoining thereto, and to guard the same from waste or trespass by others, and to protect the same from settlement by any other persons not authorized to settle thereon by the said association, or some legally authorized agent thereof; and to pay the sum of five dollars, in materials, labor, or money, towards the building of a schoolhouse of such dimensions and on such site as the said association or its agent may direct. Also, that each family specified or referred to herein, each one certifying alone for his own family, has and occupies a suitable cabin or house as described in said contract, and that each male member thereof of the age of seventeen years and upwards is supplied with a good rifle, yager, or musket, and a sufficient supply of prime ammunition."

This paper was supported by the signatures and the oath of one of the Texas Association, and two disinterested persons, to the effect that the list contained "a true and accurate account and statement of emigrant families as certified to by the heads thereof to have been specially introduced and settled by Charles Fenton Mercer and his associates, known as and comprising the Texas Association, prior to the first day of May, 1845, upon and within the limits of the grant made by the republic of Texas to said Mercer and his associates on the twenty-ninth of January, 1844, and referred to in the certificate subscribed to by the heads of the families respectively," etc. The record contains no evidence that the republic of Texas, by any of its of ficers, ever made any objection to this certificate as defective either in

form or substance. It brought the work of Mercer and his associates as to these 119 families within the terms of that portion of the contract already quoted. They did "exhibit to the commissioner of the general land-office of Texas a certificate under oath subscribed by two witnesses," under date of August 2, 1845, and certified on the same day by a "person qualified by the laws of Texas to administer ang oath," showing that Mercer and his associates had caused to be built a comfortable house or cabin on the lands settled upon by said families, and showing also that they had actually settled said families on the lands for which they received the certificates mentioned in the agreement between Mercer and such settlers.

The criticism which is made in the opinion of the court upon the language of this agreement and certificate, impresses us as exceedingly technical. It is said that the parties signing it do not state that they were emigrants from abroad introduced into the state by Mercer or his associates; they, however, do state and certify that they have each received a certificate in accordance with the contract of January 29, 1844, describing it as one which authorized Mercer and his associates. "to introduce and settle emigrant families upon the lands within the limits specified in said contract;" and they certify that they were "specially introduced and settled," as set forth in the certificates; and that they "have emigrated as the said certificates declare and show." That the persons who signed that agreement did not mean to certify that they had emigrated from state or country without the republic of Texas is a suggestion which it did not occur to the attorney general of Texas in his very elaborate brief to make. It is for the first time found in the opinion of this court. That Philians, one of the persons who verified under oath the certificate relating to these 119 families, did not know "where the colonists came from," is a fact of no consequence; nor was it material to inquire from what particular state or country, other than Texas, they came. Philians, in his affidavit, refers to them as "emigrant families," meaning thereby that they came from without the republic of Texas. We have been unable to find any evidence that the persons embraced in these 119 families did not go to the Mercer colony tract from some place outside of Texas, and there is no suggestion to that effect in the argument of counsel. It is said that none of these persons made oath to the papers they signed. Our answer is that neither the contract nor the law of Texas required any such oath, but only the oath of two witnesses. It seems to us that the complainant has made a clear case as to the 119 families introduced by Mercer and his associates prior to May 1, 1845.

The next inquiry is as to the effect to be given to the report of John M. Crockett in 1851. That report was made under the authority of an act of the legislature passed February 2, 1850, the first section of which provided that "every colonist, or the heirs or administrators of such colonists, citizens of the colony of Charles Fenton

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