
    Jose F. Ximenes v. The State
    Appeal from Bexar County.
    'Where a party was, at the declaration of independence, a resident citizen of Texas, and the head of a family, but left the country and went to Mexico, under the protection of Mexican troops in 1842, and did not return until 1845: Held-, that it was such an abandonment of the country, and interruption of the continuous residence required by the laws, that he was not entitled to a headright certificate for land.
    The appellant brought suit at the spring term, 1846, of Bexar district court, to establish his headright claim to a league and labor of land, in virtue of his having been a resident citizen of Texas and married man, at'the date of the declaration of independence. His petition was accompanied with the affidavit required by law.
    ' A verdict having been rendered for defendant, the plaintiff moved for a new trial, 1st. Because the verdict was contrary to law and evidence; 2d. Because all the jurors did not agree to the verdict; and 3d. Because new and material testimony had been since discovered. The motion was overruled by the court, and judgment entered accordingly.
    The statement of facts, as agreed upon by the counsel of both parties, presents the following evidence, to wit: That plaintiff was an actual citizen of Texas at the date of the declaration of independence; that he was then a married man and the head of a family; that he continued to reside in Texas with his family until the year 1842, at the time of General 'Woll’s retreat, when plaintiff left San Antonio, in consequence of a general rumor which prevailed there after the battle of the Salado, that the American troops weye on their way to San Antonio, with the determination of putting to death all the Mexican citizens; that it was believed by the witness that fear for his life caused him to leave; that plaintiff• returned in 1845, and with his family has never left the country since then. There was no proof that the plaintiff ever aided, countenanced or in any manner assisted the enemy.
    
      Neill and Lewis, for appellant. No brief filed.
    Harris, Attorney General, for appellee.
    The appellant is not entitled to recover in this case, because the evidence shows that he did not continue to reside in the country from the declaration of independence until the institution of this suit, as the law requires. Laws of Texas, vol. 2, p. 66.
   Hemphill, C. J.

The claimant, with his family, abandoned the country and fled, under the protection of the Mexican troops, to the territory of the enemy in the fall of 1842. He there remained until 1845.

The effect of such an abandonment, such an interruption of the continuous residence necessary to be established, and of such a refusal to participate in the war, has been determined in the case of the State of Texas v. The Administratrix of Juan Oasinova, and need not here again be repeated. The judgment of the court below is affirmed.  