(Decided May 13, 1913.)
APPEAL from Jefferson Criminal Court.
Heard before Hon. S. E. GREENE.
No counsel marked for appellant. R. C. BRICKELL, Attorney General, and W. L. MARTIN, Assistant Attor ney General, for the State.
WALKER, P. J.-No error in the record and the cause is affirmed.
(Decided May 13, 1913.)
APPEAL from Jefferson Criminal Court. Heard before Hon. S. E. GREENE.
No counsel marked for appellant. R. C. BRICKELL, Attorney General, and W. L. MARTIN, Assistant Attorney General, for the State.
THOMAS, J.-No error of record and the cause is affirmed.
APPEAL from Houston Circuit Court.
Heard before Hon. H. A. PEARCE.
E. H. HILL, for appellant. R. C. BRICKELL, Attorney General, and W. L. MARTIN, Assistant Attorney General, for the State.
THOMAS, J.-The bill of exceptions stricken because not filed within ninety days, and the cause affirmed.
Accord and Satisfaction; Compromise and Settlement; Receipt. --Where a voting contest was conducted by a newspaper, 15,000 votes being given for each subscription turned in by a contestant, and the contract was breached by increasing the number of votes for said subscription to 23,000, a contestant accepting a second prize, giving a receipt therefor, stating that the amount received was in full settlement of the second prize, made an accord and satisfaction of any right she might have to the first prize, since she was not entitled to both prizes, and a receipt operates according to the in- tention of the parties.-Hertz v. Montgomery J. P. Co., 178.
Same; Rescission; Penalty.-If an acceptance and receipt was procured under mistake of fact, or through fraud, the plaintiff not knowing at the time that she was entitled to the first prize, upon discovery of the mistake or fraud she could avoid the effect of her acceptance and receipt only by restoring or offering to restore to defendant the second prize, and demanding the first, and upon re- fusal, could maintain a suit provided she had not assented to a modification while it was still executory.-Ib. 178.
Accord and Satisfaction; Payment; Pleading.-Where the check sent was for a less sum than the amount admittedly due, the sending of the check in full by the debtor and the acceptance and cashing thereof by the creditor will not constitute a payment in full; hence, a plea of payment by check setting forth facts justifying the infer- ence that the amount paid was less than the amount admittedly due is fatally defective.-Louisiana L. Co. v. Farrior L. Co., 383.
Same; Compromise and Settlement; Acts Constituting; Plead- ing. A plea of accord and satisfaction alleging facts showing a pay- ment of a less amount in full of a larger amount is insufficient if it fails to show that the amount of the indebtedness was in dispute at the time of the acceptance by the creditor of the lesser amount tendered in full.-Ib. 383.
See Limitation of Actions. 1. Denying Correctness.
Account; Affidavit; Time of Filing.-Where a demurrer has been interposed and overruled to a complainant in an action on an account, and the trial has been entered upon, the offer to file an af- fidavit denying the correctness of the account, comes too late.- Ewart L. Co. v. Amer. C. P. Co., 152
Account; Stated; Evidence. The rule that where an account includes debit and credit, the debtor cannot claim the credit with- out submitting to the debits, does not prevent the debtor from proving that the charges against him are incorrect, where there is evidence of the payments by him other than that furnished by the creditor's admission contained in his statement, and defendant's momentary impression that plaintiff, by introducing the statement in evidence affirmed its correctness, could not form the basis of an
estoppel, if the defendant did not rely thereon to his prejudice.- Hodges v. Kyle, 449.
Same; Rebutting Presumption.-The presumption of the cor- rectness of a statement of the secured account furnished a mort- gagor by the mortgagee, arising from his failure to controvert it promptly, is a rebuttable presumption, and the mortgagor was en- titled to prove that any admission implied from his silence was not supported by any consideration in that no balance was owing on the account.-Ib. 449.
Acknowledgment; Contents; For Corporation.—Since the adop- tion of section 3361, Code 1907, an acknowledgment for a corpora- tion, to be valid must comply substantially, though not literally, with the form there prescribed.-Stererson v. Agee & Co., 389.
Same; Mode of Taking; Appearance.—Where the certificate of acknowledgment to a deed when made was not in proper form, an additional certificate in proper form, subsequently made. is invalid, unless there was a re-appearance and re-acknowledgment of the grantor before the certifying officer.—Ib. 389.
Same; Operation and Effect; Evidence.-Under section 3374, Code 1907, where the certificate of acknowledgment to a deed when made was not in proper form, a new certificate subsequently made in proper form did not make the deed self-proving where the deed was not again recorded after the new certificate was placed thereon. -Ib. 389.
Actions; Joinder; Same Transaction.-The counts in this case examined and held to be based on alleged breaches of duty arising out of the same transaction or relating to the same subject matter, and therefore properly joined. under section 5329. Code 1907.-- Hooper r. Herring, 292.
Action; Joinder.-It is permissible to join in one action causes based on a violation of the Federal Employer's Liability act with those based on the Employer's Liability act of this state, since the jurisprudence of the state and Federal governments form together one system constituting the law of the land and the state courts have concurrent jurisdiction with the Federal courts under the Federal Employer's Liability Act.--A. C. L. Ry. Co. v. Jones, 499.
Action; Nature of Cause; Joinder.-Where the action was for the death of plaintiff's intestate by coming in contact with a heavily charged electric wire, permitted by defendant's servant to remain hanging in a street, a count alleging that decedent's death was caused by the wanton or willful conduct of defendant, its agents or servants, "as aforesaid." did not change the count to one in trespass charging actual participation by defendant in the act com- plained of, it not being an independent charge, but ascribing such acts to have been done "as aforesaid" thus referring the allega- tion to the facts particularized in the former part of the count.- B. R. L. & P. Co. v. Jackson, 588.
Action; Nature; Trespass or Trover.-Where one has the legal title to personal property purchased by another from a third person, he is entitled to maintain trover, but if he had only an equitable
lien or title, his right of action would be in trespass on the case.-- Stererson v. Agee & Co., 389.
Same; Trover and Conversion; Title to Support.-A person who paid the owner of land the purchase price for timber rights thereon, and was placed in such possession of the same as the property in its then condition was capable or susceptible of, had such an equitable title to the timber as would support an action of trespass on the case for its conversion, or waiving the tort, for money had and received, although he had received no deed to the same. Ib. 389.
Adultery; Verdict; Related Charges.-The jury is not required to find by their verdict which one of the related charges a defend- ant is guilty of under an indictment charging adultery or forni- cation.-Stone r. The State, 66.
AMENDMENT.
See Parties § 2; Pleading.
APPEAL AND ERROR.
Effect of Plea of Guilty on. See Criminal Law § 1.
See Courts § 1.
1. Harmless Error.
(a) Evidence.
Appeal and Error; Harmless Error: Evidence.-Where a de- fendant was permitted without contradiction to testify as to his weight, any error in sustaining an objection to a question as to how much a witness would say that defendant weighed was harmless.— Tarver v. The State, 17.
Appeal and Error; Harmless Error; Evidence.-Where several were prosecuted under a joint indictment, and a confession of one of them was admitted in evidence, the court having previously instruct- ed the jury that it could be considered only as evidence against the one that made it, the other defendants were not in position to com- plain of the sustaining of objection to questions by their counsel to the officer testifying as to the confession as to how he obtained it.— Boswell v. The State, 23.
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