and at Paris, Tex.; and the statement made by them as to their homestead was pertinent to show that, if the land in controversy was ever their homestead, the same had been abandoned by them, and was also pertinent for the purpose of establishing an estoppel against their claim of homestead to this land. Haswell v. Forbes (Tex. Civ. App.) 27 S. W. 566; Mortgage Co. v. Scripture (Tex. Civ. App.) 40 S. W. 215; Mortgage Co. v. Norton, 71 Tex. 683, 10 S. W. 301. In this connection, we will say that the undisputed evidence shows that the land in controversy was not the homestead of said parties at the time said loan was made, and there was no error in the court's failing to charge the jury in reference thereto.

The only other assignments of error we deem it necessary to consider relate to the question of limitation. It is contended by appellants that, by reason of the failure to pay the semi-annual installments of interest falling due November 1, 1891, until more than 10 days had elapsed thereafter, the full amount of principal and interest that had not been paid on said bond and coupons then and there became due, and that said suit was not brought within four years thereafter, and that the same is therefore barred by the statute of limitations. We do not think there is any force in this contention. As before stated, the obligation was executed November 1, 1889, and was not payable until five years thereafter. There was a provision, however, that if said interest, or any installment thereof, was not paid within 10 days after the same fell due, at the election of the holder thereof, the whole debt should become due and payable thereafter, without any notice whatever. This suit was not brought until March 18, 1896, and if this debt became due by reason of the interest not having been paid November 1, 1891, as claimed, then more than four years elapsed from that time until the bringing of the suit, and the same was barred by limitation. But we are of the opinion that said debt did not mature at that time if the holder thereof did not elect to declare it due, which election was necessary to mature the debt. The holder of the indebtedness had the right to exercise that option by the terms of the contract, and, in order for the debt to become due on the failure to pay said interest within 10 days after its maturity, it was incumbent upon the holder thereof to declare it due, which he did not do.

Another proposition made by appellants is: "Mrs. Sarah M. Perot being a married woman at the time the note and deed of trust were executed, she is not bound by the conditions of the note, but her separate property, included in the deed of trust, being bound by it alone, the statute of limitation

commenced to run against the deed of trust when by its terms it could have been foreclosed." The evidence shows that the land included in the deed of trust was the separate property of Mrs. Sarah M. Perot, and that she was not personally liable on the bond, although having signed the same. The deed of trust provided that, if any installment of interest or any part thereof should remain unpaid for 10 days after the maturity of such interest, the whole debt secured by the deed of trust should become due and payable immediately thereafter, without any notice whatever. It is to be noted that this clause in the deed of trust does not give the holder any election in reference to the debt becoming due on default in the payment of interest; and it is insisted by appellants that by reason of this provision, and the wife only being bound by the deed of trust, that, as to her at least, the claim is barred. We are of the opinion that this clause just mentioned contained in the deed of trust in no way relieves appellants. We think it clear that, from the position of said clause in the trust deed, it was a part of the description of the note attempted to be described in the trust deed, and was not intended as a separate and distinct condition from that contained in the bond or note. The deed of trust being given to secure the payment of said note or bond. it was but an incident thereto, and is governed by the terms thereof. But, if it were conceded that said clause in said deed of trust should be given controlling effect, then said claim would not be barred by limitation. Rev. St. 1895, art. 3369, provides: "In case of the death of any person against whom there may be a cause of action, the law of limitations shall cease to run against such cause of action until twelve months after such death, unless an administrator or executor shall have sooner qualified according to law upon such deceased person's estate; then and in that case the said law of limitation shall only cease to run until such qualification." The evidence in this case shows that Mrs. Sarah M. Perot died in July, 1895. At that time four years had not elapsed since November 13, 1891, the time, according to appellants' contention, when said debt became due. No administration was had upon her estate, and this suit was brought within 12 months next succeeding her death. At her death limitations ceased to run, and, the suit having been brought before the 12 months expired, the said claim was a valid and subsisting debt, and the land embraced in said trust deed was subject to the payment of such debt, and there was no error in the court's foreclosing the lien thereon. There are several other assignments of error, but none we consider of merit, and the judgment of the court below is therefore affirmed.

CASWELL v. HOPSON.1

(Court of Civil Appeals of Texas. April 2,

1898.)

TRIAL-PLEA OF PRIVILEGE— APPEAL REVIEWHARMLESS ERROR LIMITATIONS COMMENCEMENT OF ACTION AMENDMENT OF COMPLAINT. 1. It is discretionary with the court to submit a plea of privilege to the jury along with the main case, instead of separately before a trial on the merits.

2. Where the record contains no statement of facts showing any evidence to sustain a plea of privilege, the submission of such plea in connection with the main case, instead of separately before trial on the merits, will not be treated as reversible error.

3. Where the original petition alleged that the injury was sustained through the falling of a derrick, which fell through a negligently defective screw, and the amended petition extended the negligence to other defects in the machinery and to the carelessness of defendant's foreman, no new cause of action was stated which was barred, limitations having run in the meantime.

4. Where an issue raised by a portion of a pleading was not submitted to the jury, no error can be assigned to the court's overruling an exception thereto.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Action by A. H. Hopson against D. H. Caswell. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This is a suit to recover damages for personal injuries, alleged to have been received by appellee, proximately caused by the negligence of appellant. The plaintiff was alleged to be a resident of Ellis county, and it was alleged that the residence of the defendant was unknown at the time of the institution of the suit, and notice was had by publication. Appellant appeared, and in due order of pleading filed his plea of privilege to be sued in the county of his residence, and further answered to the merits, subject to this plea. The case was tried, and resulted in a verdict and judgment against defendant upon his plea of privilege and upon the merits of the case. The defendant appealed to this court. At a former day of this term the statement of facts appearing in the record was stricken out, because it was not prepared in accordance with the rules, as will more fully appear from the written opinion of this court in relation thereto. 43 S. W. 547. In this condition of the record the cause has been submitted for our decision. Lancaster, Beall & Gammon and West & Cochran, for appellant. F. M. Cunyus and Templeton & Harding, for appellee.

FINLEY, C. J. (after stating the facts). 1. Appellant assigns as error the action of the court in submitting his plea of privilege to the jury along with the main case upon its merits, and refusing to submit it separately before the trial upon the merits. This assignment does not present reversible error.

1 Writ of error denied by supreme court.

This matter is held to be largely within the discretion of the court. Tynberg v. Cohen, 76 Tex. 413, 13 S. W. 315; Pryor v. Jolly (Tex. Sup.) 40 S. W. 959. Were this not true, there being no statement of facts from which to ascertain whether there was any evidence to sustain the plea, we should not treat it as reversible error.

2. The fifth, sixth, eighth, ninth, tenth, eleventh, and fourteenth assignments complain of the action of the court in overruling defendant's special exceptions, numbered, respectively, 3, 5, 6, 7, 8, and 11, contained in his amended original answer. The assignments are no fuller than the above statement, and the single proposition urged under them is: "The second amended petition shows a new and distinct cause of action from that originally instituted,-one barred when the same was filed." Under such a presentation we can only consider whether the main cause of action disclosed by the amended petition is a different one from that set out in the original pleading. The original pleading alleged personal injuries received by the plaintiff, proximately caused by the negligence of the defendant, while plaintiff was in the employ of the defendant in the erection of an oil mill in Caldwell, Burleson county, Tex. The injury was alleged to have been occasioned by the falling of a derrick used in erecting a smokestack, and that the derrick was caused to fall by the breaking of an eyebolt, which was alleged to be defective. Damages, both actual and exemplary, were alleged and prayed for. The amended petition charged substantially the same facts, but extended the grounds of negligence to other defects in the appliances used and to the carelessness of the foreman in the use of such appliances. The subject-matter of the two pleadings was the same, and the enlargement of the allegations as to negligence did not change the cause of action. Cotton Co. v. Stewart (Tex. Civ. App.) 42 S. W. 241; Railway Co. v. Davidson, 68 Tex. 370, 4 S. W. 636; The Oriental v. Barclay (Tex. Civ. App.) 41 S. W. 123; Railway Co. v. Flannagan (Tex. Civ. App.) 40 S. W. 1043; Railway Co. v. Eberhart (Tex. Civ. App.) 40 S. W. 1060.

The nineteenth assignment complains of the overruling of exception No. 2 in the supplemental answer. The exception is directed at that part of the petition which charges that plaintiff worked under one Reagan as foreman, and that defendant held said Reagan out to the public and to plaintiff as foreman, and knowingly permitted said Reagan to so hold himself out, and that the acts, words, and conduct of defendant induced plaintiff to so believe, etc. The petition was good in the respect complained of. Besides, this phase of the case was not presented to the jury by the charge of the court, and no injury could have resulted from the action of the court.

The twentieth and twenty-first assign

ments relate to the admission of testimony, and cannot be considered in the absence of a statement of facts. The twenty-third, twenty-eighth, twenty-ninth, and thirtyfirst assignments relate to errors in the main charge, and cannot be determined hurtful error, in the absence of a statement of facts. The thirty-fifth, thirty-sixth, and thirty-seventh assignments are directed to the charge of the court on the plea of privilege, and are in the same attitude as the last preceding assignments. The thirtyeighth and thirty-ninth assignments complain of the refusal of special charges, and must be treated as the assignments just considered above. All the other assignments are in the same attitude, and present no reversible error.

On examination, we find that the pleadings fully support the verdict and judgment, and the judgment must be affirmed. Affirmed.

WILLIS & BRO. et al. v. SIMS' HEIRS. (Court of Civil Appeals of Texas. June 25, 1898.)

ORAL STIPULATION-VALIDITY.

Rule 47 (20 S. W. xv.), governing the practice in district and county courts, provides that no agreement between attorneys touching a pending suit will be enforced unless in writing, and filed as a part of the record, or made in open court, and entered of record. Held, that where attorneys orally agreed that a pending case should be governed by the result of one on trial, but not in open court, nor entered on the record, it was error to admit evidence thereof, and give an instruction permitting a recovery thereon.

Appeal from Navarro county court; J. F. Stout, Judge.

Suit by W. F. Sims, and continued after his death by his heirs, against P. J. Willis & Bro. and another, for a wrongful seizure of goods on execution. From a judgment in favor of plaintiffs, and an order denying a new trial, defendants appeal. Reversed.

This suit was instituted by W. F. Sims, the husband and father of appellees, against the appellants, P. J. Willis & Bro., in the county court of Navarro county, February term, 1892, complaining, in substance, that plaintiff was a retail merchant doing business in the town of Dawson, in Navarro county, having in his possession as his stock in trade merchandise of the value of $2,000; that the defendants, P. J. Willis & Bro., a private corporation, and H. L. Fullerton, on May 26, 1891, unlawfully entered his storehouse, seized and took from his possession and converted certain described goods of the reasonable value of $500, for which he prays damages, etc.; and, specially, that on February 27, 1891, P. J. Willis & Bro. recovered a judgment in the county court of Navarro county against Frank T. Sims for $210; that they procured execution to be issued on said

judgment on May 6, 1891, which was placed in the hands of H. L. Fullerton, who was then constable at Dawson; that levy was made on the goods described in the plaintiff's petition, and that the property so levied upon was not the property of W. F. Sims, but was owned by Frank T. Sims; that the goods were used in a business run in the name of W. F. Sims, but the business in fact was that of Frank T. Sims, and was conducted in the name of W. F. Sims for the sole purpose of hindering and defrauding the creditors of Frank T. Sims in the collection of their just debts against him. Pending the suit, in March, 1892, W. F. Sims died, and his surviving widow and children came in on September 7, 1897, and made themselves parties plaintiff, adopting the pleading formerly filed by their ancestor. The cause went to trial on December 14, 1897, resulting in a verdict and judgment for plaintiff against the defendants in the sum of $376. Defendants in due time filed their motion for new trial, which being overruled they have duly perfected their appeal to this court.

Frost, Neblett & Blanding, for appellants.

BOOKHOUT, J. (after stating the facts). Appellants' first assignment of error reads: "The court erred in that part of the general charge to the jury wherein the jury are instructed, in effect: "That if an agreement had been made by the attorneys of plaintiffs and defendants that this case should abide the final result of the suit of Sims against Sanger Bros., that then the only question for the jury to consider is the amount of damages to be assessed against the defendants,'-when it was not shown that any such agreement existed, if at all, in a manner such that the court could take cognizance of it:" After the parties had announced ready for trial, the plaintiffs filed an affidavit alleging that on the trial of the case of W. F. Sims against Sanger Bros.-a suit in all respects similar to this-the attorneys in this suit, who were the attorneys in the case of Sims against Sanger Bros., made an agreement that this case should abide the final result reached in that case, except as to the amount of damages. Evidence was admitted that such an agreement was made between the attorneys in this case while the jury were out in the case of Sims against Sanger Bros.; that said agreement was oral, and was not entered of record. The trial court, after stating the issues made by the pleadings, instructed the jury as follows: "If you believe from the evidence in this case that counsel for plaintiffs and defendants entered into an agreement during the trial of the cause of W. F. Sims against Sanger Bros. et al. to the effect that this suit should abide the result of the suit against Sanger Bros., and you further believe that said suit of W. F. Sims against Sanger Bros. et al. was final

ly decided in favor of plaintiff W. F. Sims, and you further believe that by the terms of said agreement the only issue to be submitted was the amount of damages, then you will find for plaintiffs the amount that W. F. Sims paid for the goods at the time they were sold by the officer, with 6 per cent. interest from the date that said goods were sold to W. F. Sims, if you believe from the evidence that said goods were levied on by defendants, and sold to W. F. Sims." "If you believe from the evidence that counsel for plaintiffs and defendants did enter into an agreement that this suit should abide the result of the suit of W. F. Sims against Sanger Bros. et al., except as to the amount of damages, and you further believe from the evidence that the defendants seized and levied on the goods of plaintiff W. F. Sims, and you further believe that said goods at the time of said levy and seizure belonged to W. F. Sims, then you will find for plaintiffs the amount that W. F. Sims paid for said goods at the time they were sold by the officer making the levy, with 6 per cent. interest from the date of said sale." Defendants requested a special charge, which was refused by the court, as follows: "You are instructed that plaintiffs cannot recover under any agreement made between the attorneys in the suit, unless said agreement was in writing. If it was not in writing, then it is not binding, and you will disregard it."

It is provided by rule 47 (20 S. W. xv.), governing the practice in the district and county courts, that "no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record; or unless it be made in open court and entered of record." It is not contended in this case that the agreement was in writing, or that it was made in open court, and entered of record. We think this rule clearly prohibited the enforcement of such an agreement as was alleged to have been made between the attorneys, and that the court erred in admitting the evidence to show such an agreement, and in charging the jury as above complained of, and in refusing the special charge requested by defendants. Wootters v. Kauffman, 67 Tex. 495, 3 S. W. 465. It follows that appellants' first assignment of error is well taken.

Appellants' sixth assignment complains of the action of the court in refusing to strike out the affidavit filed by plaintiffs, setting up the verbal agreement between the attorneys to the effect that this suit should abide the result of the case of Sims against Sanger Bros. It follows from what we have said under the first assignment of error that this assignment is also well taken.

Appellants' third assignment of error complains of the action of the court in suppressing a part of the answer to the tenth interrogatory of the witness G. W. Younger. We

think there was no error in the action of the court in this respect, and said assignment is not well taken.

Appellants' fifth assignment complains of the court's refusing to admit the testimony of the witness R. B. Marsh in reference to certain arbitration proceedings between W. F. Sims and F. T. Sims. We have carefully examined the record, and are of the opinion that there was no error in the action of the court in refusing to admit the testimony offered. For the errors above indicated in the first and sixth assignments of error, the judgment of the court below is reversed, and the cause remanded.

MISSOURI, K. & T. RY. CO. OF TEXAS v. WRIGHT.1

(Court of Civil Appeals of Texas. April 9, 1898.)

CONTINUANCES

DENCE-RAILROADS-PESONAL INJURIES-HARMLESS ERROR-BURDEN OF PROOF-INSTRUCTIONS. 1. In an action for personal injuries, a motion for continuance set forth that a certain doctor was a material absent witness, by whom the defense could prove that he went to the wreck where plaintiff was alleged to have been injured to give medical aid, and that plaintiff did not ask for aid; that he examined plaintiff at his home on the next day, when he found no objective signs of injuries. Plaintiff, however, testified that no symptoms of injury developed until the next day. The injury was to the spine, which did not appear externally. did not appear that an examination the day after the injury was more likely to develop the true condition of plaintiff than examinations within two weeks, four of which were made by different physicians who were witnesses for defendant. Held, that the trial court did not abuse its discretion in refusing a contin

uance.

It

2. A physician may testify that plaintiff, whom he examined for the purpose of testifying in the case, "was confined to his bed and unable to walk without aid," since it is a pure statement of fact.

3. A physician who had examined plaintiff may testify, as an expert, that plaintiff could not very well have feigned his injuries, and that he also could not have stood an operation which was performed without the aid of chloroform.

De

4. A train was wrecked, but the rear coach, in which plaintiff was a passenger, was not derailed or overturned. Plaintiff claimed his injuries had been caused by the shock. fendant pleaded a general denial. Held, that evidence was admissible that persons riding in the other coaches were injured, and that the engineer was killed.

5. Plaintiff elicited from several of defendant's witnesses, over objection, that the engineer had been killed in the wreck which injured plaintiff, and that they had testified for defendant in the case brought by his estate against defendant. Held that, while the evidence in regard to the witnesses having testified in said case was irrelevant and inadmissible, it could not have injured defendant, and hence was not ground for reversal.

6. In an action for personal injuries, the jury were charged to find for plaintiff, if they be lieved, from a preponderance of the evidence, that he was injured as alleged while a passenger on defendant's road, and that the burden 1 Writ of error denied by supreme court.

of proof was on plaintiff to show, by a preponderance of the evidence, that he received the injuries complained of through the negligence of defendant's agents. Held, that a charge to find for defendant, if the jury believed, from a preponderance of the evidence, that plaintiff did not receive the injuries complained of while a passenger, was not misleading, as placing the burden of proof on defendant, when considered with the other portions of the charge.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Action by W. C. Wright against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

T. S. Miller and G. C. Grace, for appellant. A. A. Kemble & Son and Wm. H. Allen, for appellee.

FINLEY, C. J. This is a suit for damages on account of personal injuries alleged to have been sustained by appellee, while a passenger upon appellant's road, in a derailment and wreck of its train of cars, upon which he was traveling, caused by the negligence of appellant. The answer was by general demurrer and general denial. A trial was had July 7, 1897, and resulted in a verdict and judgment for appellee in the sum of $5,000, from which this appeal is prosecuted by the defendant railroad company.

Conclusions of Fact.

(1) It is unquestioned that appellee was a passenger upon appellant's train of cars, and that the train was derailed and wrecked through the negligence of the defendant company.

(2) The only contested issues of fact are these: Was the appellee injured in said wreck? and the extent of such injury. The evidence was conflicting upon the point whether appellee received any injuries at all in the wreck. His own testimony showed that he was seriously injured in said wreck, and his evidence was strongly supported by the testimony of several doctors and other witnesses. There were several doctors whose testimony tended strongly to show that appellee was not injured at all in the wreck. It was the province of the jury to settle this conflict, and we cannot disturb their finding upon the issue. In support of the verdict, we conclude that appellee was injured in the wreck. There is no special question made as to the extent of his injuries. The evidence justified the jury in finding that appellee's injuries were serious and permanent in their character, and we so conclude, and find that appellee was injured to the extent of the damages awarded.

Opinion.

Appellant's first complaint is directed at the action of the court in overruling its application for a continuance. The application was based upon the absence of the witness Dr. H. M. Mathews. It set forth that it was

desired to be shown by the witress that he went to the wreck to give medical aid and attention, and that he was not called on while there to give attention to appellee, and his attention was not directed to him in any way as one of the injured, and, further, that he examined appellee, on the next day after the wreck, while at home in his bed, and that he found no objective signs of any injuries sustained by him. The record shows that this suit was filed November 7, 1895, and it shows that at the December term, 1896, the cause was continued by the defendant on account of the absence of the witness Dr. Simpson. The application does not disclose the number of the application, and the record is silent as to the disposition of the cause at the various other terms after the filing of the suit and before its final trial in July, 1897. In this condition of the record we must regard the application as one addressed to the discretion of the court, and an abuse of this discretion must be made to appear in the action of the court to constitute error. Arnold v. Hockney, 51 Tex. 46; Railway Co. v. Hall, 83 Tex. 679, 19 S. W. 121. So far as the question of diligence is concerned, we think the application was sufficient. The witness was shown to have been subpoenaed, and to have previously rendered obedience to that process, and it was not necessary to show that witness fees had been paid or tendered to him. Let us examine the matters to which the witness was expected to testify, with the view of determining whether the court abused its discretion. As to the fact that the witness was at the place of the wreck to give medical aid to the injured, and that appellee did not apply for such aid, and was not called to witness' attention as one of the injured, the evidence in the case shows that this testimony would have been utterly immaterial and without effect upon the trial. The plaintiff himself testified that his injury did not manifest itself until the next day, and that he did not receive or call for a doctor's attention until the day after the wreck. There was no evidence to a different effect on this point. The fact that the witness examined appellee the next day, and found no objective signs of injury, is urged as being of material importance. The injury complained of, it is contended by appellee and shown by his witnesses, resulted from a shock. It is not contended that there were any bruises, lacerations, or other outward visible indications of the injury to the spine, immediately following the infliction of the injury. It is not made to appear that an examination had on the day after the injury was more likely to develop the true condition of appellee, with reference to the injuries complained of, than examinations conducted at later dates. So far as the record enlightens us, an examination conducted on the day after the wreck would throw no more light upon the issue of injury vel non than the examinations