Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3. Page: 90
vi, 659 [660] ; 22 cm.View a full description of this book.
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90 BRACKEN VS. WELLS ET AL.
being objected to, it was ruled out by the court, and the plaint'iff
excepted.
TNELL and LEWIS for appellant.
J. W. ROBINSON and GILLESPIE for appellee.
Opinion of the court by Chief Justice HEMPHILL.
In this case the judgment of the court below must be reversed.
The statute prohibits surveys on certificates for headrights
unless they are certified by the clerk of the county court
where the certificates were issued or are proposed to be located,
or by the commissioner of the general land office, as having
been reported by the commissioners appointed to detect fraudulent
land certificates, etc. And any survey made contrary to
the intent and meaning of the act is declared to be null and
void. [Laws of 1840, p. 161.]
A court cannot issue a mandamus to compel a public officer
to perform an act which is not clearly prescribed by law, or to
compel a surveyor to make a survey upon an evidence of
clailn, which is prohibited by the law from being received as
proof for that purpose. It is true that in this case the county
surveyor, in his return, states his willingness to obey the mandamus
in all its terms and conditions, and prays for time for
that purpose, and, upon his compliance, to be discharged and
exonerated from costs, etc.
This was in 1841, more than three years after the entry was
made, and seems extraordinary willingness to discharge a duty
which has been neglected until resort was had to compulsory
procesA. He expresses no opinion as to his own duty in the
conflict between the two claimants, and no ground why the
survey had not been made. And had a manzdailus nisi issued,
as should have been the case on the filing of the petition, the
surveyor would doubtless have obeyed the mandate and rendered
a peremptory writ unnecessary. But this was not done,
and the survey has not yet been made.
The surveyor appeared in his own person, and perhaps supposed
that the only proper return on his part was an averment
of his willingness to obey whatever order the court might make
in the premises, without the necessity of an attachment issuing
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28571/m1/96/: accessed May 2, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .