
    The State v. Burnett, Empresario.
    It was not incumbent on an empresario, suing the State under the authority of the statute, to allege that he was a citizen; the grant of authority to empresarios to sue was general; the exclusion of aliens was special; and if the disability existed it was a matter of defense.
    The fact of the present residence of the plaintiffs in the State of New York (November, 1816) does not raise the presumption that they were aliens to the Republic at the passage of the statute authorizing empresarios to sue.
    Appeal from Travis. This was an action for the establishment of the claims of an empresario. The petitioner; David G. Burnett, representing himself as a citizen of the county of Harris, in the State of Texas, and as suing for the use of Stephen Whitney, John Haggerty, and George Griswold, resident citizens of the city and State of Hew York, alleged that ho entered on the 22d day of December, 182G, into a contract with the proper authorities of the State of Coalraila and Texas to settle and colonize three hundred families upon a certain tract of laud (the boundaries of which are described) within the limits of Texas.
    lie represented further that by the contract the families were to be settled within the limits of the said colony in the space of six years, and that this term was, by a subsequent act of the Congress of Coahuila and Texas, prolonged to the space of nine years; that within the time so extended lie and those who acted with him and by his authority did carry out and fulfill the said contract in all its parts by settling the three hundred families stipulated in said contract, whereby lie became entitled to receive fifteen leagues and fifteen labors as premium lands, which premium lands neither he nor any other person acting for or represent ing him in carrying out said contract had ever received or any part thereof.
    The petitioner also represented that after the making of the said contract, finding himself unable from his own resources to carry out the said enterprise of colonization, he engaged the a-sistanee of certain persons who undertook to carry out and perform ail the. obligations and stipulations of said contract, and for which lie agreed that they should receive all the benefits resulting from the. performance of th(' same, and that said persons did fulfil all of liis duties as said contractor, and that the said Stephen “Whitney, John Hag-gerty, and George Griswold, for whose use he sues, are the lawfully authorized representatives of said persons, and as such are entitled to the benefits of any decree to he. rendered in the premises. lie prayed that Albert 0. Horton, Acting' Governor of the State, might he made a party to the suit, and in substance that lie might have, judgment in conformity with the prayer of the petition, <fre. 1 The petition was filed oil the, 10th of November, 1840.
    The answer consisted of a general demurrer and a general denial filed at the Spring Term, 1817; and at the Fall Term, 1848, there was filed a special demurrer, assigning for causes:
    1st. That the petition does not allege or show that John Haggerty, Stephen Whitney, and George Griswold, for whose use and benefit the said suit was instituted, are or were citizens of the State or-Bepuhlie of Texas.
    2d. On Hie contrary it shows that the petitioners were aliens to the said (Republic of Texas, all of which lie is ready to verify.
    The plaintiff offered in evidence the original contract (as filed in the General Laud Office) between himself and the government of the State of Coalmila and Texas; also the decree extending the. time of the said contract, the original' commission of George Antonio Nixon, commissioner for the said colony, the said commission bciiig also on file in the General Land Office. The plaintiff also-introduc'd the abstract, of titles issued by Nixon as filed in the General Land Office, showing that there had been settled in the said colony under said contract tvt o hundred and twelve families and forty-four single men ; and also the original deeds from said land office executed by the said commissioner to-tlié colonists. The plaintiff also proved that neither lie nor any other person for him or in his name had received any premium lands for introducing, colonizing, and settling- said families and single men in said colony.
    To'the introduction of all of which testimony the plaintiff objected; and the objection being overruled, exception was taken. It was agreed by the parties-that certified copies from the laud office of the said contract, commission, and abstract of titles should he sent up in the transcript to the Supreme Court* and that the court or either of the parties might, if deemed necessary, refer to the original documents offered in evidence, the same being- on file in the General Land Office. A jury being waived, the cause was submitted to the court* and a decree for eleven leagues and fifteen labors of land was entered for the plaintiff for the use of parties named in the petition, and certificates were ordered to issue.
    
      Attorney General, for appellant.
    J. Wcbh, for appellee.
   HEMi’inxjj, Oír. J.

The defendant contends in his brief that the demurrer should liave been sustained on the grounds, first, that there was no authority in law authorizing suit to be brought against the Governor of the Slate, the statute permitting suits to be brought against the President of the He.public conferring- no right of action against the State executive. We may remark that no action"was had on (lie demurrer in the court below, and the same might be' considered as waived or abandoned. But if it be admitted that the demurrer had been brought to tito notice of the court and formally overruled, yet títere is no force in the first ground of exception. The statute of April 20th, 18-16, (Art. 2159, Dig..) declares that parties way in all cases commence suits against the Governor or the State of Texas iu which parties hail been authorized by the laws to institute suits against the President of the Republic or against the Republic of Texas.

Tlie second ground iu support of Use demurrer urged by the appellee is that the parties for whose use the suit was brought are nowhere alleged to have ever been citizens of the Republic or State of Texas. Tins objection arises, we presume, from the provision of the section authorizing suits by empresarios, and which declares that neither aliens nor the assignees of aliens shall be entitled to tile benefits of the act.

This is an objection’ which cannot on the pleadings of this court he readied by demurrer. The statute does not require that the plaintiff shall expressly allege that he is a citizen of the Republic or Stale, or that he is not an alien. The grant of authority to empresarios to sue is general. The exclusion of aliens from this right is special. To maintain such action it is not .necessary that the plaintiff'should allege that he does not labor under the disability imposed on acurtaiue.lassof empresarios by the statute. If this disability exist in fact it is matter of defense, and should as such be averred and proven. The petition does not show on its face that it is brought by an alien or the assignee of an alien. The plaintiff, Burnett, the contractor with the government, in whose name this colonization contract, as it appears from the record, was taken out and was progressing to completion, alleges that he is a resident citizen of Texas, and that tiie persons for whose use ho sues are resident citizens of the State of Now York. But the fact of their residence in the State of New York does not make them, at least at the time of bringing this suit, aliens to the State of Texas. They and the persons whom they represent, awl by whose means, efforts, and agency this enterprise was partially performed, may, for aught that appears, have been citizens and residents of Texas at the passage of "the act and for-a long period afterwards. They may not have removed until subsequent to annexation ; and if so they certainly would not at any time have been aliens to the Repnblio or State.

The fact of their present residence iu the State of New York does not, as the defendant contends, necessarily raise tbo presumption that they were aliens to the Republic at the passage of the stalute; snob presumption at most is not conclusive. But this is not a case for presumption or conjecture. If any fact which would have deprived (lie plaintiffs of the benefit of the act existed, it was doubtless susceptible of proof, and might have been established. It is sufficient for the plaintiffs in this ease that on the facts as they appear in the pleading they are not disabled by the statute from bringing the action. The exclusión of alien empresarios or their assignees from the benefit of suit was in accordance with the general policy of the country iu the grant of lands to resident citizens ; but the law does not require an empresario to continually reside in the country. His disability arises from alienage and not the want of continuous residence.

We are of opinion that the demurrer, even if it should not he regarded abandoned, could not have been sustained. On the facts as established by proof the plaintiff was entitled to the judgment of the court. 1-Iis contract and its extension by decree No. 192, the commission to Nixon, and the fact of the introduction of the number of families and single men entitling him to the amount of premium adjudged, were proven fully and by competent evidence.

It is ordered, adjudged, and decreed that the judgment in favor of the plaintiff for eleven leagues and fifteen labors of land be, and the same is hereby, affirmed, and that so much of the judgment of the District Court as authorizes the clerk of the District Court to issue certificates be, and the same is hereby, reversed; and it is further ordered, adjudged, and decreed that the clerk of this court do, in conformity with the act of February 11th, 1S50, issue to the said plaintiff for the use of the said Stephen Whitney, John Haggerty, and Geo. Griswold, eleven certificates for one league of land each, and one certificate for fifteen labors; and that he otherwise proceed in the premises in conformity with law.

Ordered accordingly.

LIPSCOMB, J., did not sit in this case.  