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WARREN V. THE STATE.

(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.

WILLIAMS V. THE STATE.

(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.

YOUNG V. THE STATE.

(Decided June 17, 1913.)

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.

SUBJECT INDEX

ACCORD AND SATISFACTION.

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.

ACCOUNT.

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

2. Stated.

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

ACCOUNTS.—Continued.

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.

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.

1. Joinder.

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.

2. Nature.

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

ACTIONS-Continued.

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.

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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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