
    John T. Rives v. T. Habermacher.
    (No. 823, Op. Book No. 2, p. 259.)
    Appeal from Wharton County.
   Opinion by

Clark, J.

§ 747. Sworn account under act of 187might be rebutted by defendant without affidavit; rule is now different. The act of April 2, 1874 [Laws 1874, chap. 43, p. 52], which was in force at the time of this trial, did not preclude a defendant in a suit upon a sworn account from rebutting the prima facie case made by the introduction in evidence of the account, even though he had failed-to deny its justness under oath. The effect of the statute was simply to relieve the plaintiff from proving his account by oral testimony, deposition or some other method, unless its justice was denied, in which event its prima facie character was destroyed, and the plaintiff was remitted to his proof, as before the passage of the act. The rules of pleading or evidence were not affected by the act. [English v. Miltenberger, 51 Tex. 296.] Note. — The rule is now different [R. S. 2266], and such evidence would not be admitted without an affidavit by defendant in accordance with the article just cited.

§ 748. Payments; application of; plea in relation to. A debtor who seeks to avail himself of any direction given by him to his creditor, as to the application of payments made upon his indebtedness, should aver with distinctness his election at the time of payment as to which of several debts held by the creditor he desired the payment to be applied; and in the absence of a proper plea, he should not be permitted to make proof of any such election and direction as to application of the payment made, if such proof be objected to.

March 20, 1880.

Reversed and remanded.  