The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1884-05-08
THE HIGHER COURTS.
wherein the Lower Courts aro sus'
tained and Reversed.
Fall Summary Of Appealed Cases.
suparsr coURr.


womsn' susd her husband Tor debt, had
sIso susd out writ OF attachment, and her
husb.pd's creditors interviewed, claiming
that As, attachment was eollusive; that
she and daisndsnt were wife ana huf pand,
and that thsir dsbis vers community debt.
and the property ON wh'en zoe n,,aenIns u,.
was levied was oommupiy y, and The court
charged the jurs ~ matter OF law, WIN
ont ANY qualification Whatever that be-
o~uss A, was the wife OF defendant she
could NOT lawfully have, In her favor, q
writ OF aitse msst iesuss sgAins' nsNnu-
ant the community property and thereby
acquire rights superior TO other creditors,
who mad Iust deh,s against tao community.
Held, error. Under our sy~sn II marital
law vifs can, Ia proper osse. Tor the
protection Of her sspcats nights, msininiS
A suit In he~ own name Against hsr has.
band. (Prios W. Osls, 81 Ts1as. 81; Hall
We. Hall, % Texas, 2asi 20 Ala, is3; Wells
10 Ohio, ST.; ss Ma, 6s; 81 Ma, SsS; ~
Barb, $40, and many others. Reversed
GRIMM We. ohildr.s.: from Guadalupe
county. Opinien by Willie, Q. ]. Upon
the face OF the deed the consideration sp
peared TO have been Maid by Mrs, u. ana
the land vested In her ~ her separate es.
tate. Defendant ooatended that It VISA cos
veysd to her charged with irust for tho
benefit Of her husband. The evidence
showed that the consideration was negro
slave, but a conflict nIisss rs ~ the tfne
ownership thereof. Dsisnd.nt introduced
proof showing that tina slave ives glves
Mrs.B. ~ her basband's Esther TO be held
by her fer his own use ana Ter the
purpose OF protecting such slsys from the
Husbands dents. l IN not shown whether
BIS Interest waa absolute In titls. or for
life. Ifinvss,sd With tile as claimed by
him, and he conveyed the negro Ia eonsid'
Grafton OF the land, without proof OF other
intention, the law will presume u was ms
intention To present his wife, titlc q the
land, Whistler BIS interest was for Life, or
sbsoluts, in fee sim ole, he gives his vito
such interest a. he had In the slave ana
such In tho sysbanfs prspsrtv as be re-
ceiyes. The doctrine tpst shen properly
charged with trust is exchanged Tor otoer
property, the lstlsr is held subisol TO tho
trust Is not applicable when toe wife Is the
trustee Of the husband, without Allowing
that IL was the intention OF the parties to
retain the trust relation. Tbs correct
doctrine IL, that the husband can give. the
wife properly, Of which he IL the cSs,ui que
trust, as we'll as any Other. ana bv having
the deed nade to hsr. vest in her absolute
title. Affirmed.
Scali vs. TompldLe; from Collin county:
Opinion by Willie, c, ]. There is no clnii Ct
or deviation between the old ann inc re-
vised statutes, wherein the former pro-
vided, that a plea in Ieclnveo ton wss
valid In such CO es where he dei0ndsnt has
n claim against the plaintiff similsr in ma
ture, but not necessarily 50 in degree, TO
that upon which the suit is based. the
right 10 such suiia TO q recovery II not dc.
pendent upon the claim su5d on heing
moneyed demand. All matters to
the cause OF seton pleoua.,
up In The answer. Tee plea IN reconveH-
tion q Texas 205; Texas 500 Ia not CON
fined to GASES where tho origin i suit 10 on
moneyed demand, but may be irtdrpnsea
in any case where the meter comes withiu
the deposition laid down IL aiticis 6oO, ne
vised Statutes. After di,coyeJi < tee dc,
fec. l., the machinery TIRE de'endanS had
the right to iescind wi hin Il reasonable
time and recover the purohose money paid
or retain and sue for damages, or recon
vene and claim them in Sc UT against O
suit for the balance OF the purchase money.
The plea in Tecopventlon showS thnt oe.
fendant offered to resond, but at the request
of plaintiff retained the machinery and
used it, upon plaintiff promisiDg TO pay
any damages sustained by ressoa OF the
machinery failing TO comply with tho agree.
ment. II this proposition had not Deen &C.
cepted, suit for purchase money wonld
have been maintained. Reversed and re-
manded.
COMMISSION oY APPEALS
Aiken vs.. Hale u Mcdonald; from La
mar county Opinion by Wslker, p; J..
Adopted. The original petition IN this
case claimed demaees f1r breach OF a con.
tract, The subsequsDt plssdlngs did rot
relinquish this part OF the claim other tnan
by praying in the alternative Tor spec'hc
performance, until by amendment, compen'
sation was claimed Tor performances OF GER
tain servics under contract. Where as
herein, the osuse OF action depended upon
the same fact and the ssmh TRANSACTIONS
throughout, and the different changes
in the pleadings at the different time,
relating only 10 Tie feuef sought. ntio.
This, did not change the Character or the
cause OF action fac osusa OF action De
ponds upon the facts stated la the petition
rather than the particular brsach laid.
TIE special exceptions that, the cause OF
action attempted 10 he set up6 By the pla mt
iff elbows upon its face that 1t came within
the statute of frauds and cannot be SUI
taiped,n were properly overruled. 68 Ill,
424). One who has ren6eref services III ex-
ecution of verbal contract, which, on
account of the statute, cannot be en'orcea
against the other party, CAN recover the
value of suoh services rendered upon qusu
tum mervit. Affirmed,
Frazier ct al. vs. WOODWARD ct al; from
Coryell county. Opinion by Watts, j.
Adopted. The fling Of the pstition at or
befor the Judgment by confession is essen
tial in constituting Arte. 1,34749 OF the Ike.
yised Statutes When the suit is upon
pfonlissory note, which 10 made part OF
the petition, and the amount SUED Tor ~
not stated it is sufficient for the Judgment
to declsrA the amount due on the note. (lO
Texas, 1877, The doctrine OF waiver assert.
ed in Gass vs.. Pilgrim Us Texss, Z6S) eau.
not apply 10 this case. it beng apparent
that the amount recovered ia excess OF the
claim is not cccssioned by miscaloulatl
of interest, but that It arose from u consid.
Grafton of other claims than those alleged
in the petition. A judgment cannot IN
clude cause OF action not asserted IN Inc
plaadings, and judgment by confession
cannot work waiver OF this sort OF error.
Reversed and remeuded.
Schultz ct al. vs. Lsmpart ct al; rom FL
Peso county,. Opinion by Watts !.
Adopted. SUIT to recover mesne profits as
damages for the wrong full detention OF GER
tain premises. The special exceptions TO
the petition set up the insufficiency OF the
description Of the property. which IL: AL
those certain premises and buildinss stu
ste In said county OF Presidio, in the west.
ern part OF the town of Fort Davis, beins
the same premises and buildings on that
day and thereafter used and occupied by
Sender & 6eibeDborn, merchants al Fort
Davis, Texas, including the shove buildings
occupied by their business as merchants,
together with the corral, stables, lodging
APARTMENTS, and other buildings thereto
appurtensut. Held: To be all the necss-
sery description required. The only other
objection Is that the court erred In allowing
interest on the vslue of meme profits az
found by the court. Held: Whether called
interest or damage is wholly ministerial,
and when the court properly determined
that the damages to appeilSes BY the deten- |
Al ~. Kfu