The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-05-03
THE HIGHER COURTS.
Tho Superior Arm oi tho Law and its
Criticisms,
wherein The Lower Courts are Sus-
tained aud Reversed.
Fall Summary Of Appealed Cases.
AuPRnNg cot Rr


husbands creditors interviewed, claiming
that AS. attachment. was colluslve; that
she and defendant were wife and husband,
and that their debts wers community debts
and the property on which the attachment
was levied was community, and the court
charged tho jurv as n matter OF law, with
out any qualification whatever that De.
cause A. wac the vile OF defendant she
could not lawfully have, In her favor, ~
writ Of nttaoh ment issued against defend
snt tho community property aud thereby
acquire rights superior TO other creditors,
who had Just dchis ase'nst the community;
Held, error. Under our syttem OF msrltsl
law wife can, In proper case, for the
protection of her separate rishts, mainiais
q suit In hor own namo against her bus
band. price W.. Cole. 81 Texas, All; Hall
We. Hall, 80 Texas, 29s; so Ala. 1893; Wells
10 Ohio, 81; 80 Ma, 6s, 81 Ma. SIS; 40
Barb, she, and many others. Reversed
Grimm VS.. Ohildress; from Guadalupe
county. Opinion By Willie, c. J.. Upon
the face OF the deed this confederation NJ.
pesred TO have been pnid by Mrs. Ii. and
the land vested In her rs her separate es.
tate. Defendant contendcd that 1t was cou-
veyed to.hsr charged with trust Tor the
benefit OF her husband. The evidence
showed that the consideration was negro
slave, but u conflict srises Ms to the true
ownership thereof. Defendant introduced
proof showing that the slave WAS given
Mre.sB. by her husbands father TO be held
by her for his own use and Tor the
purpoys of prot ec,ing such slave from The
husbesd's cots. H. N net shown whether
De interest was absolute in title, or for
life. Ifinvested with title AZ claimed by
him, and he convey ed tho negro la oonsid.
Grafton OF the land, without proof OF other
intention, tho law will presume IL WAS bis
intention TO present his WIFE title ~ the
land Whether BIS interest was Tor lie. or
absolute, lin fee sim pie, he gives his wife
such interest 40 he had In the slave and
such In the EXCHANGE property rs he re.
ceives. The doctrine Jnat when property
charged with q trust u exohsngpd tor other
property. The latier IL held subjscl 10 the
trust Is not applicable when the wife Is tne
trustee of the husband, without showing
that ~ ms the inteution OF the psriies 20
retain the truet relation. The correct
doctrine IL, that the husband can give the
wife properly, of which ne 10 the ctstui que
trust, as we'll as any other. and bv having
tho decd made to her, vest in her absolute
title. Affirmed.
Scalt va. Tompkins FROM Collin county.
Opinion by Willie, c.. ]. There is no conflict
or deviation between the old and the re-
vised ststutes, wherein the former pro-
vided, that q plea 10 roc1nventinn Was
valid III such ca es where the defendant has
a claim against the plaintiff similar in ma
tire, bat not necessarily 80 In degree, 10
tiet upon which tho suit Is based. The
right la such suits to recovery l, not de-
pendent upon the claim sued on heiDg
u monsyed demsnd. All matters to
the cause OF action pleedn-
BILE In rsconveutlon may be set
up IN the answer Too plea 10 reconven-
tlon q Texas 205; Texas 500 Ia not con
fined To cases where tho originai suit IL on y
moneyed demand bal may be interpreted
in any case where the matter comes Within
the deposition laid down IN article $50, Re
yiyed Statutes. Alter discovering the de-
fec, Ia tho machinery tho defendant had
the right TO seciId within reasonable
time and recover this purchase money paid
or retain and cue for dam ages, or recon
veue aud claim them Ia IS of agsins. y
suit tor the balance OF the purchase money.
The plea in recoDvention shoss tina. de-
PENDANT offered 10 reSoind but at the request
OF plaintiff retained the machinery ana
used II, upon plaintiff promising TO pay
any damages sustained by reason OF the
machinery failing Ia comply with the agree.
ment. II this proposition had nut been &C.
copied, suit for purchase money wonld
have been maintatlei. Reversed and re-
manded.
COMMISSION or ArPssLs
Aiken va. Hale u McDolaid; from La
mar county. Opinion BY Walker, p. J.
Adopted. The original petition ia this
cas-, claimed dsmggee f'r hresch OF a con-
tract, The subselHsrt plsadings did not
relinqulsh this part OF ths claim other tnan
by PRAYING In the alternative for speclnc
performance, until by amendmeBt, compen'
sation was claimed Tor periorniance of GER
tain service under contract. Where, AS
herein, the csuse OF action depended upon
the same fact and the same iran sscnoDS
throughout, and tha different changes
In the plesdiUgs a. the different time,
relating only to the reiiet eought. Held
MAJ. "A A. cha h.. oh at M
cause OF action. The cause OF action de
pepos upon the facts stated ia the petition
rather than ths particular breach laid
Tho special exceptions that, the cause OF
action attem pied to ne set 40 By the pla MT
jff shows upon its face that IL came. within
the ststuts cf frauds Gnd cannot be su:'
tanned" were properly ovarruled, (6S Ill.
42i). One who has rendered services in ex'
ecution Of verbal contrsct, which. on
account of the statute, cannot bs enforced
against the ether party, can recover the
value NJ such services rendered upon guam
tum mervit. Affirmed.
Frazier ct al. vs.. WOODWARD OF al; from
Coryell county. O2lnion by Watts, J.
ADOPTED The fling of the petition at or
befor the judgment By confession 10 essen
tial In construipg Arts. 1,3i7.10 Of the Re.
vised Statutes. Whsa the suit is upon n
promissoiy note, witch Is made part OF
tho petition aud the amount sued Tor is
rot a,ed 1t 10 sufficient for the judgment
to declare this amouus due on the note. no
Texas, 1921 The doc rine Of waiver avert.
ed In Gsss w. Pilg-im (2S Texas, 2G3) can.
not apply tn this case. II being sppsren.
that the smoHnt recovered Ia excess oil the
claim Is not occts oned by miscalculation
Of interest, but that IL arose from consd-
Grafton OF other claims than those alleged
In the petition. A judgment cannot in
clude q cause Of action not asserted in the
plesdings. and judgment By confession
cannot work waiver OF this sort OF error.
Reversed and rsmsnded.
echuliz ct al. W. Lampart ct al rom FL
Paso COUNT. OpiniLn by Watts !.
Adopted. SUIT "a recover meane profits as
damages for the wrong ul detention OF Ger.
tain premises. The special exceptions 20
the petition set up the insuiiiciency OF the
description OF ths propsrty which a.: "all
those certain premises and huidinas stu.
ate IN said county Of Presifio, in the wsst-
eYn part OF the town OF Fort Davis, bein
the same premises and buildings on that
day aud thereafter used and occupied by
Sender & eeibenborn, merchants St Fort
Davis, Texas, including the above buildings
occupied by their business "a merchants,
toeether with the corra', stables, lodging
APARTMENTS, and other buildings thereto
sppurtenaut. Held: To be all tho nscss-
say description required The only other
objection Is that The court erred Ia slios ing
interest on the value OF mssne pr' hts ss
fonnd by the court. Held: Weetber called
interest or damage is wholly i'm material,
and when the court prspaty dttArmiued
tnat tba damages 10 aprali IS By he deten-
tion OF their propeIty was In amount m
great - the interest allowed the judgment
will be affirmed.
Chsse We. Rowan; from Hill county.
Opinion by Walker, p. !. Adopted. The
only question 10 this csse In did the court
err In overriding appellants motion tor con-
tinuancs. The defendant having delayed
to procure subpoena for the witness from