Thе answer of the surveyor does not appear to have been verified by affidavit; and it is said in Bracken v. Wells and others, that although our statute docs not, in exceptions, require the application for a mandamus tо be verified by oath, yet, on general principles, they ought to he so verified. (3 Tex. R., 92.) But we are not aware that it has ever been decided by tills court that the answer must be sworn to. Formerly, by the common law, the answer to a rule for a mandamus could not lie controverted; its verity could not he questioned in that suit. (Fitzhugh v. Custer, 4 Tex. R., 393. AVlien the common-law rule prevailed it would seem that the answer ought to he verified by oath. But the common-law rule lias not been introduced into onr practice, (see case last cited,) and with us there cannot lie the samе necessity for verifying it by oath, because its truth is subject to lie. controverted in the same action. But if it were аdmitted that as a general rule the answer ought to be sworn to, yet it might well allow of exceptions where the answer, as in this case, refers to sufficient matter of record in the office of the officer who is called upon to show cause, why a mandamus should not issue to justify him in his refusal; and to show good grounds why it ought not to issue, it is believed thаt an affidavit would not be absolutely essential to its verity. It might be otherwise if it sot np matter in pais as an excuse for nоt doing wliat lie had been asked to do by the petitioner.
The next ground questions the sufficieiiey of the answer as to the matter therein contained affording a defense. The plaintiff in error contends that when the surveyor was called upon to make the survey by a person wishing to avail himself of the pre-emption law. all thаt he had a right to require of the applicant was that lie should make the affidavit specified in the statute, and that the affidavit, when made, is conclusive on the surveyor as to the land required to be surveyed being vacant and a part of the public domain. Article 2130, I-Iart. Dig-., provides, ‘‘That ail individuals,who have settled upon and “imрroved, or may hereafter settle upon and improve, a portion of the vacant “public domаin, which lias been neither filed upon, entered, located, nor “surveyed, by virtue of some genuine, legal, and valid certificate, or other “ evidence of title to land, previous to such settlement and improvemеnt, shall “liave the privilege of locating- and surveying a tract of land, not exceed- “ iug three hundred and twenty аcres, so as to include said settlement and “improvement, in preference to all other claims оr claimants.” And in article 2135, among other tilings, it is provided, “And on application being “ made by sncli settler to a surveyor to have his land surveyed to include his “improvements, lie shall not be compelled to furnish the surveyor with any “lаnd certificate, but lie shall take an oath, which maybe administered to “him by said surveyor, that lie believes lie is sеttled upon vacant land, as “contemplated in the first section of this act, upon which the snrvey, not “ exсeeding three hundred and twenty acres, may be made, and the field-notes “shall he returned, with the aforesaid affidavit of the settlor, to tile comity “surveyor of the eountv in which the land lies,” &c. It is very clear that the law above cited did not extend its privileges to a settler upon any but the vacant public domain which hart not beеn filed upon, entered, located, nor surveyed by virtue of some genuine, legal, and valid certificate, оr other
Judgment affirmed.
Note 73. — Tabor v. Commissioner, 29 T., 508.