The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-12-08
o,oJnf Deolel0ea,

itiiNbua ~ TIE supreme fouH Deft"""Hf
ifmfdin W. Abbey, nom Kauhnhn county
Act of i1D required Judge upon The 70
uucsi N either party 10 state In writing The
of fact found by him. separately
from the conclusions of law, which conclu.
slons Of law shall be filed with the Clerk
and made u part ~ the record, liule n u so
amended as that the party who desires TO
appcnl from. The decision Of The
Judge shall made II his request under
the statute a. predicate for. u specific
assignment Of errors, and though tthe
trial be by the judge alone, the
same rules shall govern, which In other
eases require that a specific assignment be
made, the court having the right, In It's
discretion, as under rule q, to inquire into
fundamental errors, apparent OF record, rs
though no assignment had been attempted.
Rule q as amended, is to take effect Janu-
arv /. 1882 Courts of equity, should, as
far as possible, adjust all the the rights OF
the parties necessarily involved The decree
in this, case falls short of this rule, and 1t IS
reversed and reformed. Bonner, judge.
Wimberly VS.. Pabst; from Hunt county.
The mere fact that divorce had been de-
creed between the original grantees in a
land certificate will not defeat the wife's
community interest, and particularly when
the property, at the date OF the divorce, was
not in esse (4S Texas, 26o). "A certilicate
for land is, until located, a chattel, and the
right of action for it's detention and CONVEX
sion would be barred in two years. But, II
located and patented within two years, it
loses its character as personal property and
partakes of the nature of realty. When,
as in this case, the land is patented, not to
the husband, but to the assignee, the wife's
interest becomes only. equitable. The
patent issuing more than twenty years
before the suit was instituted, the. plea
OF State demand may be properly inter
posed. If the recitals in the imminent of
title are not sufficient to put prudent man
upon inquiry, then they. OF themselves are
not sufficient to constitute constructive
notice. Affirmed. Bonner, judge.
johnson VS.. Crawl; from kaufman county.
If Sheriff's sale is made on an inclement
day, at an unusual hour, and thereby re-
suits in damageto a judgment creditor, pre-
venting him from reaching the plac of sale
and protecting his interests, equity will en-
result ofhis own neglect, equity will not
afford him relief. Bill of exception and
brief of counsel should point out objections
made and sustained ETC., in order to secure
attention of this court. Affirmed Gould,
chiefjustice.
Ida Baker VS.. w. M. Baker; from
county. The effect of the deed in this
case depends upon the intention at the time
it was.executed of him or them who had the
right to control, and arriving at that inten-
ton the contemporaneous circumstances
and declarations are evidence. The deed
herein was taken in the name of the wife
by direction of her father-in-law, who fur
nished the purchase money, and for the
purpose of securing her home: go Texas,
295).. The property being the separate
property of the wife, her right would not
be affected by judgment and foreclosure
to which she was. not a party. reversed
and remanded. Gould, chiefjastice.
Syllabus of the Decisions of the Court OF
Appeals.
Henson & Cumming VS.. Flanagan from
,Rusk county. Without reference to the
merits of the exceptions, general or special,
of the defendant to the plaintiffs plead
ings, it is held that the Petition discloses
transaction in Futures" and such are
neither more nor less than gambling ven
lures, and cannot constitute the basis OF a
civil action. The court did not err in dis
missing the plaintiffs petition. Affirmed
White presiding justice.
II. G.. Smith VS.. the State; from Grayson
county. In prosecution for the theft OF a
mule, the court properly charged that if, at
the time the defendant obtained possession
of the animal by consent of the owner, he
intended to steal it and took it for that pur-
pose, and in pursuance of evil intention,
did afterwards appropriate its value, he
was guilty of theft And likewise, the
court properly charged that if witness
bought the animal from defendant, know
ing it to be stolen, his testimony must be
overruled in order to convict. Affirmed.
Per curiam
c. B. Sowell ct al VS. State from Kauf-
man county. The complaint in this case
was for assault and battery with intent to
kill" and the appearance bond described
the otfense as an assault and battery"
In answer to sci. IA, appellants assailed.th
bond as insufficient in law; but held, upon
the authority of Hotchkiss VS.. State, goth
Texas, 1862 that the bond was sufficient to
bind principal and sureties, and the court
did not err in sustaining it. Affirmed.
White, presiding justice.
CARROLL vs. State from Demmitt county.
For a conviction in this case the State re-
lied upon the uncorroborated testimony Of
court, when his evidence was reduced to
writing. Tue defense on trial was an alibi
to prove which the defense asked-for a con-
tinuance to obtain witnesses, bringing his
application within the rule of diligence.
In view of the contradictory and suspicious
character of the evidence of 5. and his con-
fessed suppression of the facts to which he
testified, until guaranteed immunity from
prosecution, the conviction cannot stand.
A new trial should have been awarded. Re-
versed and remanded. White, presiding
justice.
: Sandy Thompson vs. State, from Wash
ington county. The rule has been an
nounced, and is infexible that statement
of facts Hxed after the adjournment Of
court without an order of court conforming
10 the statute cannot be entertained by this
court. ", in the absence Of Q statement or
facts, the charge of the court upon the law
of the offense laid, is found abstractly cor
rect, this court will not interfere with
Judgment ofconnection. Affirmed. White,
Eek parte John Boland; from Grayson
county. The city Of Denison is fully au-
thoriZed to maintain prosecutions for viola
tions of its ordinances in its corporate
name, and not charge such ofense in the
having been prosecuted and fined in the
Recorders Court, sued out a writ Of habeas
corpus before the County Judge,
which, upon motion of the County
Attorney, was dismissed, and the relator re-
manded 10 the custody OF the Marshal until
the fine was paid. Held, contra REALTORS
position, that the County Judge did have
jurisdiction TO entertain and act upon the
motion. Appellant fails TO show on appeal,
that he is Illegally restrained Of his liberty.
Affirmed. White, presiding justice.
Hustled VS.. State. From Dallas county.
The conviction was for the oiiense Of swind-
ling. The indictment charged, and the evil
dence showed, that the defendant delivered
a check for s25 10 one T., drawn on ii. NJ.
H., signed By himself, and bearing the en-
dorsement OF c. ON the back.
which endorsement was not made
nv G. or with his knowl-
edge and consent. or by any one authorized
10 make Il, which defendant well knew. and
obtained the money thereon. Held that
the ofense was not swindling, but uttering
a forged instrument, knowing It 70 be
forged. The gist Of an Ofiense consists in
the acts done or omitted, a. defined by the