The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-05-04
Tn 4 COURTS,

Synopsis Of Opinions OF Commission.
ers Of Appeals Adopted by Supreme
Court.
John Tsrl,on We. Daniel Daley; from
Ellis county. Daley brought the suit in
1874 as assignee Of promisory note payable
to order of W. H. Oliver, made by Tarlton.
The note was for $500, executed December
p, 1873, and payable January Is, 1874; its
consideration as recited on its face being the
conveyance of certain lots. Petition alleged
that plaintiff became owner for valuable
consideration by assignment and delivery
from Oliver on the - day of January,
1874. Prayer was for judgment for the face
OF the note and interest, and decree to en-
force vendors lien. Answer set up as gen
eral denial and special defense that one G
W. Vaughn, on October 6, 1873, recovered
judgment against Oliver, payee of note sued
on, for 1858 Is in justice of the pesces court,
which was still in force and was lien on
the property for which the note was given:
that therefore deed made by Oliver does not
convey perfect title, that Oliver owned no
property subject TO execution, and could not
respond to defendant in damages if the lien
was enforced, and that the note was trans
ferred after maturity. On the trial the
court refused to permit defendant to offer
evidence hat q judgment had been recovered
against Oliver, and that the note was trans
ferred after maturity, because the judgment
stood for trial in the district court on appeal.
This action Of the court is assigned as error.
Held, That If the evidence was admissible
under proper pleadings, its exclusion was, as
the ruling is applied to this CASE but abstract
error, which would not require reversal.
Facts not alleged, although not proven, can.
not form the basis Of q decree. rs Texas.
800. Defense will be confined to matters
alleged in the answer. The probate must
conform to the allegsta-[4 Texas, III; l
Texas, 443 The defense in this case did
not set up facts sufficient to support judg.
ment founded upon it. Affirmed. Walker,
Commissit ner.
Nj. B. George ct al. vs.. N. w. Taylor;
from Guadalupe county. The setting aside
OF a nonssuit and reinstatement of q case,
being power confded to the discretion of
the trial court, such action cannot be held
error, unless abuse of that discretion is made
to appear. ~ When, as in this case, the
assignment OF errors are too general, the
court may well refuse to consider
them. (3). This court cannot, In this case
hold that the verdict is without proof to
sustain it. "When a party pays money in
Ignorance of circumstances with which the
receiver is acquainted and does not disclose.
which, If disclosed, would have avoided the
payment, the receiver acts traudulently, and
the money may be recovered back" rs
Moore, 1856; 2, Md. ch., 137; Fr. ch., 4S8; 2.
Swan, TENN, 295. Affirmed. Quinan,
Commissioner.
w. l. George vs.. f. A. Vaughan; from
Guadalupe. This was suit by George
against Vaughan alleged in petition to be
"clerk of the--court of said g. county,"
to recover back an over plus of $2S so
exacted by said Vaughan, more than allowed
BY law for recording q bill of sale, and for
$500 or 5000 peremtory damages, etc.
Plaintiff demurrer was sustained, and this
ruling assigned as error. The court did not
err. Petition did not aver that appellee was
clerk of district court of G.. county-.
who then, May, 1870, was the only officer re-
CURED or authorized by law to record such
instruments. Nor did the petition aver that
appellee was authorized or required by law TO
record such instruments. In order to enti,le
appellant to recover, no must have alleged
that appellee was at the time clerk of the
district court Of G.. county, or else that no
was required by law 10 record such instru.
ments. For functions of general demurrer,
see l Tex, 1851; IS Tex, 6l2. Affirmed.
Watts, Commissioner.
Geo. w. Poe at al vs.. Jno. Brawrigg et al;
from Travis. Heirs of Mrs. Poo esqd 90 re-
cover an undivided half &c a ieos ue of land,
patented to Brawrigg and Hatch as assiguees
Of &, w. Poe. The land was located BY
virtue of Poe's hid ~ certificate issued Ia
1888 for l. and L, l. being a married
man. The cert 6csto was transferred during
the lifetime of Mrs. Poe. Judgment against
plaintiffs was not erroneous. Tho certificate
was community property of Poo and wife,
and during her lifetime, Poe had an absolute
right to convey the whole Of! Il. 10 Tex, 1870.
Affirmed. Quinan. Commissioner.
Jones ct al vs. Stallsworth; appeal from
Falls county. Appellant sought to enjoin
appellee, a Justice Of the peace, from taking
any judicial action towards the enforcement
OF an act for the protection OF the farming
Interests Of the state. Passed May 10th,
1873, upon tho allegation that said act was
unconstitutional. The Injunction was
granted and at the hearing, upon motion
the same was dissolved aud the cause die
missed. Held, That the injunction should
have been refused, but II having been grant.
cd, the court properly dissolved Il and dis.
missed the cause. See High on Injuuc,ions,
secs 40 and 80. Sanders vs. Melcslf 1
Tenn, Oh 40 The cours determine rights
under tho constitution and lave, ascertaining
and determining for that purpose. tho con
stiu.ivnality and validity Of any law on
which rights depend, but they have no power
whereby they may decree that Legislative
action shall, In effect, DO directed and con
trollai by the in,erposi,ion Of Judicial
veto. Affirmed. Walker. G.
synopsis of Opinions Of supreme
Court.
lBased upon reports of commissioners of ap.
peal
George erd Christopher Ptcuilar vs.. vii.
derran ct al; appeal from Bcxsr. Tho ac'
OF The Legislature diminishing tho civil snt
tfrat mi tte s.ts A Al