er acquired the title, but it passed from Squires to appellant. The preparation of the deed to appellee had no effect, because it was never accepted by him. The note, with its stipulation for a vendor's lien, could not make the contract executory, because it was not given to the vendor, in whom was the title, but to appellee, who had no title. The judgment is erroneous, and will be reversed, and judgment here rendered for appellant. Reversed and rendered.

GOOD V. CALDWELL.

(Court of Civil Appeals of Texas. Nov. 30, 1895.)

CONTRACT-PLACE OF PERFORMANCE-ACTION FOR BREACH-PLEA IN ABATEMENT-SUFFI

CIENCY-COUNTERCLAIM-DAMAGES.

1. A contract for pasturing cattle in the pasture of a third person in a certain county provided that the owner should pay to the other party to the contract 20 cents per head per month, "one-half to be paid when the cattle are put in said pasture, and the other half to be paid when they are taken out." Held, that the money need not be paid in the county where the pastures were located.

2. In an action against the owner of cattle

for pasturing them in S. county, defendant filed a plea in abatement, alleging that he was not a resident of S. county, but resided in R. county; and that the contract sued on did not stipulate for the payment of the sum due for pasturage in S. county. Held, that such plea was suffi

cient.

3. Under Rev. St. art. 316, providing that no counterclaim can be pleaded in the county court unless it had been relied on in the justice's court, in an action to recover a balance due on a written contract for pasturing cattle, commenced in justice's court, defendant cannot, in the county court, for the first time set up a claim for damages for breach of such contract by plaintiff, and an agreement that if plaintiff violated the written contract he would forfeit his right to collect for pasturage.

4. In an action on a contract for pasturing cattle, providing that the owner of the cattle should pay 20 cents per head per month, held, that no damages could be recovered for failure to pay the amount due for such pasturage over and above any balance due, with interest.

Appeal from Scurry county court; Branch Isbell, Judge.

Action by J. M. Caldwell against L. J. Good to recover a sum alleged to be due plaintiff on a written contract for pasturing cattle for defendant, commenced in justice's court, and taken on appeal by defendant to the county court. From a judgment for plaintiff, defendant appeals. Reversed. F. G. Thurmond, for appellant.

HUNTER, J. On the 27th day of November, 1893, the plaintiff, J. M. Caldwell, and L. J. Good entered into a written contract, whereby it was stipulated that Caldwell agreed to pasture for Good from 500 to 600 head of cattle in the Thomas and Harris pastures in Scurry county, Tex., from the date of the contract until April 1, 1894, and then follows this stipulation: "Said party of the second part (Good) hereby agrees and

binds himself to pay to said party of the first part (Caldwell) the sum of twenty cents per head per month for all of said cattle delivered to him by said party of the first part, at the time said cattle are taken out of said pasture; one-half of said pasturage to be paid when the cattle are put in said pasture, and the other half to be paid when they are to be taken out." Then followed other stipulations in the contract binding Caldwell to keep the pasture fence in good repair, and keep out all estray cattle, and not put any other cattle in said pasture during the time Good's cattle were in there. Suit was filed in justice's court of Scurry county, where the cattle were pastured under said contract, on March 31, 1894, based upon said contract for pasturing cattle, to the amount of $147.62, and the further sum of $50 as damages; total amount claimed, $197.62. The defendant, Good, filed a written plea in abatement to the jurisdiction of the court over his person, alleging that he was not a resident of Scurry county, but was a citizen of Texas, and resided in Runnels county, of said state, and that the contract sued on did not stipulate for the payment of the sum due for said pasturage of cattle in Scurry county; and, claiming his privilege under the statute to be sued in the county of his residence, he prayed that the suit be dismissed. This plea was sworn to as required by law, and was the only defense filed or made in the justice's court. The transcript from the justice's court recites that this "plea of privilege was heard by the court and overruled," and then follows a judgment by the justice of the peace reciting that the defendant, though present in person and by attorney, refused to answer, and he renders judgment, upon hearing the evidence, etc., against the defendant, Good, "for $92 on contract, and the further sum of $50 as damages." The defendant appealed from this judgment to the county court of Scurry county, executing a supersedeas bond. In the county court the defendant, Good, again presented his plea to the jurisdiction of the justice's court over his person, and claimed the right to be sued in the county of his residence; and, in addition to said plea, he filed for the first time setting up that the plaintiff, Caldwell, had a general denial, and also a special answer,

violated the contract himself, and by way of reconvention claimed damages against the plaintiff in the sum of $342. He also, in his said special answer, sets up a verbal contract made just after the signing and delivery of the written contract, whereby it was agreed that if Caldwell violated the stipulations of the written contract binding upon him, then he should forfeit his right to collect the 20 cents a month for pasturage. The record does not disclose the objections of plaintiff to the plea of privilege filed by the defendant, but the order overruling the plea recites that it was heard upon argument of counsel, and, the law being for the plaintiff,

the said plea was overruled, to which defendant excepted. The county court, as shown by its judgment, sustained an exception to all of the answer of defendant except the general denial, the ground of the exception being that the defendant had failed to make such answer in the justice's court, and was, therefore, precluded and estopped from making it in the county court.

We are of opinion that the ruling of the county court in sustaining the exceptions to the special answer of defendant, setting up a breach of the written contract on the part of plaintiff, and setting up the oral contract in defense of the plaintiff's claim, was correct, as no counterclaim or set-off can be pleaded in the county court, unless it had been relied on in the justice's court. Rev. St. art. 316. We think, however, the court erred in holding the plea of privilege bad. We are clearly of opinion that the plea as presented is good, and, if proved on the trial thereof, the action should be dismissed, because the plaintiff's right of action is based upon the breach of a written contract, and there is but one defendant, and he is a natural person, not alleged to be a corporation, and he states that he is a resident citizen of Runnels county, and does not reside in Scurry county. The contract was not for the rent of lands, as contended by the plaintiff, because the entire and full possession of the lands remained with the owner. It might as well be contended that, because I hire a livery man to keep and feed my horse for a certain sum per month, I have thereby reneed his stables. The written contract fails to state any particular place of payment. That part of the contract which provides for payment when the cattle are taken out of the pasture only fixes the time of payment, and not the place. In all pleas in abatement to the jurisdiction of the court the rule is to negative every fact that would give the court jurisdiction, and we do not mean to infringe upon this rule, but the rule must be considered with reference to the case made by the plaintiff; and it is frivolous for a man, when sued out of his county, and who wishes to insist upon his privilege of being sued in the county of his residence, to be compelled to come into court, and plead and swear to it that he is not a county, nor a foreign corporation, nor a married woman; or, where he is sued upon a promissory note, to be compelled to plead that the suit is not one for divorce, nor to revise the order of a county court probating a will, nor one on the part of the state to forfeit a charter. There can be no good reason found for such construction of the rule, and we are disinclined to carry it that far.

We are also of opinion that the court erred in permitting the plaintiff to prove that he was damaged $50 by reason of the `defendant's failing to pay the plaintiff the amount due for the pasturage. The measure of damages in this case would be 20 cents

per month per head for the cattle pastured, and interest from the 1st of April, 1894, at the rate of 6 per cent. per annum, subject to be reduced by such payments as defendant had made; and, should this suit be dismissed, and a new one commenced, of course the matter in reconvention and set-off attempted to be set up in the county court can then be pleaded in the court where the suit is commenced, subject, however, to such exceptions for insufficiency as the plaintiff may properly urge.

There are other errors assigned, but we do not think they are likely to arise on another trial in view of this decision, and we therefore express no opinion on them. For the reasons above given, the judgment herein is reversed, and cause remanded.

PROCEEDINGS TO

ANNUL-MUNICIPAL CORPORATION.

A judge who owns taxable property in a city, against which proceedings are brought to annul the corporation and remove its officers, is disqualified to try the cause. Wetzel v. State (Tex. Civ. App.) 23 S. W. 825, followed.

Appeal from district court, Eastland county; T. H. Conner, Judge.

Quo warranto by the state of Texas against the city of Cisco and others to annul the corporation and remove its officers. From a judgment for defendants, plaintiff appeals. Reversed.

Scott & Brelsford and Boykin Owens, for appellant. B. W. Patterson and J. H. Calhoun, for appellees.

STEPHENS, J. This quo warranto proceeding was brought to annul the corporation of Cisco and remove its officers. After the trial the district judge discovered that he owned certain unimproved real estate, of little value, within the corporate limits, upon which, however, he had paid all taxes, but declined to recuse himself, and set aside the judgment already entered. The amended petition, as well as the information, contained the allegation "that the said E. P. Alvord, as mayor, and W. E. Mancill, T. A. Williams, T. W. Neel, Joe Wilson, and T. J. Worthington, as aldermen, and J. W. Whitesides, as marshal and tax collector, are now exercising, and attempting to execute, civil jurisdiction over said territory, and their acts as such pretended officers are null and void, and a usurpation of authority properly belonging to the officers of Eastland county, Texas, and that said pretended officers, as aforesaid, are now levying taxes within said territory, above described, and exercising and performing other acts in relation thereto; that the taxable values within said territory, above described, amount to the

sum of $452,581, and the amount of the tax to be collected therein amount to $4,861.84 per annum; that the fees and emoluments of said offices will amount to $1,000 per annum, and that the rate of taxation is exorbitant, illegal, and confiscatory, and amounts to more than one per cent. on the dollar; that the law necessary to be complied with in order to legally incorporate said city or town has not been complied with, and that said incorporation is null and void." The prayer of both the petition and information was for judgment of ouster against the officers, and that the pretended corporation be declared null and void, and for general relief.

The necessary effect of the suit, if successful, would have been to prevent the levy and collection in future of "illegal, exorbitant, and confiscatory taxes," as alleged. Had there been a specific prayer for injunction against the collection of existing taxes (which there was not), it could have added nothing to that result. We cannot distinguish this case in principle from the Wetzel Case (decided by this court) 23 S. W. 825, 5 Tex. Civ. App. 17, following the Nalle Case (decided by the supreme court) 22 S. W. 668, 960, 85 Tex. 520. See, also, Casey v. Kinsey, 23 S. W. 818, 5 Tex. Civ. App. 3. The judgment will therefore be reversed, and the cause remanded for further proceedings, as indicated in the opinion of Justice Head in the Wetzel Case.

MISSOURI, K. & T. RY. CO. v. SANDERS. (Court of Civil Appeals of Texas. Dec. 4, 1895.)

WRONGFUL EXPULSION FROM TRAIN-SUFFICIENCY OF EVIDENCE-IMPEACHING TESTIMONY

-RES GESTÆ.

1. It appeared that plaintiff, an officer, boarded the rear platform of defendant's car to ride from one depot to another within the city, to watch for escaped prisoners; that persons frequently rode between these points; that the conductor came out to the platform, asked plaintiff what he was doing there, and, on being answered, "Nothing." used some abusive words, and pushed plaintiff off the steps while the train was moving between 8 and 10 miles an hour; that plaintiff was considerably bruised, being under a physician's treatment for 10 days thereafter. Defendant's witnesses testified that the train was not in motion when plaintiff was ejected, that he was standing up as the train left him, and that the conductor used no unnecessary force. Held, that a verdict for actual damages was proper.

2. A declaration of the conductor, made several days after plaintiff's expulsion from defendant's car, that on plaintiff's refusal to get off he "knocked the d- scoundrel off the train," is admissible as impeaching testimony, the conductcr having denied that he made such statement.

3. Testimony that, after plaintiff had gone about 35 yards from the place where he was ejected from defendant's train, he complained of his injuries to witness, and asked him to go. for a carriage, is admissible as res gestæ.

4. Where the nature of a party's injury is in issue, declarations to his physician during

his illness, explanatory of his symptoms, may be received, if such declarations do not involve a statement of the cause of the injury.

Appeal from district court, Caldwell county; H. Tiechmueller, Judge.

Action by J. J. Sanders against the Missouri, Kansas & Texas Railway Company to recover for wrongful expulsion from a train. From a judgment for plaintiff, defendant appeals. Affirmed.

The

Suit by appellee against appellant for actual and vindictive damages, brought the 14th day of March, 1894, for alleged wanton and illegal ejection of plaintiff from the platform of the defendant's passenger Pullman car by pushing him off the platform while the train was moving at a high rate of speed, causing him physical and mental injuries and expenses set out in the petition. court below sustained exceptions to the suit for vindictive damages. Upon a trial by a jury verdict was rendered for plaintiff for $55 actual damages, for which judgment was rendered, and from which the railway company has appealed. The principal questions presented by assignments of error are that the verdict is not supported by the evidence, and the court below should have granted a new trial.

L. J. & A. B. Storey, for appellant. Stringfellow & Coopwood, for appellee.

COLLARD, J. (after stating the facts). There is a conflict in the testimony on the main question as to the force and violence used by the conductor in ejecting plaintiff from the platform of the car, and also on other questions; but upon the assumption that the verdict solved the conflict in favor of the plaintiff we are justified in finding the facts as follows:

Plaintiff was marshal of the city of Lockhart. There had been a jail delivery a short time before at Lockhart, and the deputy sheriff, J. M. Wright, son of the sheriff, had information that one of the escaped prisoners, who was under indictment for forgery, was in town, and would probably go off on the train that night; and, having business away, he (the deputy sheriff) requested Sanders to watch the train that night, as he had to be absent from town on business. Sanders had one Van Flowers to go with him to watch the trains for the escaped prisoners, and about 12 o'clock at night they were at the depot of the San Antonio & Aransas Pass Railroad on this business. The passenger train of defendant company left this depot to run to the defendant's depot. Sanders and Flowers got on the steps leading to the rear platform of the rear car,—a Pullman car,-to ride to the other depot, and watch for the escaped prisoners; Flowers on the west side and Sanders on the east side. It was in proof that persons frequently rode on the trains from one depot to the other without molestation by the conductor or other employés of the defendant company. The

train stopped at a switch to switch onto the defendant's line, and then moved on towards the defendant's depot. Just after passing the switch, and as the train was getting under headway, the defendant's conductor came back to the rear end of the sleeper, having been informed by the Pullman conductor that some one was on the steps, and asked Sanders (he did not see Flowers) what he was doing there. Sanders replied, "Nothing." The conductor used some "cuss words," and knocked or pushed Sanders off the steps, the train moving at the time some 8 or 10 miles an hour. Sanders' version of the matter is "that the conductor came to to the door of the car, and as asked me what I was doing there, think he said, 'What in the hell are you doing there?' I told him I was marshal of the city and was going to the 'Katy Depot.' I was on the lookout for some parties. He said, 'By G-d, I am a deputy United States marshal.' At that time he pulled the bell cord. I started to look around the train north, and he shoved me off. The train was running at the time, I think, 9 or 10 miles an hour. At no time during our conversation did the conductor ask me to go inside the car, nor did he say anything about the rules and regulations to keep people from riding on the platform or steps of the cars. He did not ask me for fare, nor did he ask me for a ticket. I had ridden from one depot to the other several times without a ticket or paying fare. The conductor saw me, and made no objection. I was shoved from the car between the switch and the dirt road. I fell in a running position. It threw me back to the cattle guard. I fell into the ditch at the north end of the cattle guard, against the end of the timber. My chest and side struck chest and side struck against the timbers of the guard. My hand was skinned. My wrist was sprained, my left leg, left side and breast, and my face was scraped. For about a week I could not use my right hand. My leg hurts me yet. I was in bed from it for about two weeks, and after I got up it was some time before I could walk. I suffered from my chest and side for three or four weeks. It would hurt me in breathing. Van Flowers helped me to get up out of the cattle guard, and carried me to Dr. Trigg's, and then home." The train stopped after Sanders was pushed off, about 40 yards from the place, and Flowers went back, and found Sanders, and found him getting up out of the cattle guard. Flowers testified about Sanders complaining of hurts at the time, pain below the knee, his right side and shoulder, and then testified as follows: "I started to town with him, but when he got about 45 yards from where he was pushed off he complained very much of the pain, and said he could not go any further. I then came over to Field's stable, and got a carriage for him. When I came back he was this side of the board about 110 or 115 yards from where he was thrown from

the cars. I carried him to Dr. Trigg's house. I examined him, and found a large bruised place on the leg between the knee and foot, and a bruised place on his face. He did not seem to have the use of his arm. Saw him try to use it as he got out of the carriage. Supposed it was from the fall. After Dr. Trigg attended to his injuries, I took him home. I had to help him from the carriage to his house." Other witnesses testified that the train stopped only at the switch. Witness for the defendant testified that the conductor stopped the train after stopping at the switch, and put Sanders off the car, using no more force than was necessary to get him off, and that he was standing up when the train left him there. Dr. Trigg, who treated plaintiff, testified to his having found injuries on the leg. "Above and below the left knee was a bad bruise. His chest was bruised, and his left side pained him very much, he told me. There were bruises on the forehead, and some abrasions of the skin. His right wrist was sprained." The examination of the doctor was directly after the alleged injury. In answer to the question, "Was he in his right mind?" the doctor answered: "He did not seem to be quite himself. He seemed to be dazed. He was confined to his bed about ten days. I could not form any correct prognosis of the injuries that night,-could not tell what the internal injuries might be. The next morning he was in his right mind, and was suffering very much, so he told me. I did not find any bones broken. I also examined his chest. I could not find any wound of the legs, but I could not tell what the internal condition was." Plaintiff used crutches a while after he got up. The doctor treated him about 10 days, and told him he would charge him $50 if he got him up. Dr. Trigg testified further that he used liniments on the bruises, and that his injuries were mostly bruises.

The foregoing are the main facts in substance, which we find to be true in deference to the verdict, except the conflicting testimony of defendant as stated above. The testimony of defendant's witnesses tends to show that the conductor only used such force as was necessary to get the plaintiff off of the steps of the car, and was careful in what he did; that plaintiff made a demonstration as if to draw a pistol when the conductor informed him that he must get off the car. This is denied by plaintiff, and the verdict settles the conflict in favor of plaintiff. We find that the testimony supports the verdict as the case was submitted to the jury by the charge of the court. There is no complaint of the court's charge. The assignments of error addressed to the ruling of the court in refusing a new trial because of the insufficiency of the testimony cannot be sustained. Appellant complains of the ruling of the court in permitting the witness Sears, over objection of defendant, to testify as to the

statement of the conductor several days after the ejection of the plaintiff, made to the witness, as to how the matter occurred: "That the conductor said to him at Luling that Sanders got on the train; that he told him to get off; that Sanders refused, and he knocked the dd scoundrel off the train." This testimony was offered to impeach the conductor, he having denied that he made such a statement; and it was admissible as impeaching testimony. It was not error "to permit the witness Van Flowers, over defendant's objection, to testify that after he had gone about 35 yards from the place where Sanders was ejected from the train, that he (Sanders) complained to him very much of his injuries, and said he could not go any further, and requested him to go to town for a carriage." It was decided by the supreme court in Railway Co. v. Shafer, 54 Tex. 648, that such testimony is res gestæ, and admissible as such, tending to show the bodily condition of the plaintiff at the time of the expressions. "Whether they were real or feigned, was a question for the jury." The rule is well established that in a suit for bodily injuries suffered by plaintiff, his expressions made at the place where he claims to have been hurt, indicating pain, are admissible as res gestæ. Railway Co. v. Barron, 78 Tex. 421, 14 S. W. 698. There was no error in permitting Dr. Trigg, the attending physician of plaintiff to testify that on the next day after the injuries plaintiff complained to him of pain in his chest, side, and leg, and that his wrist hurt him. The rule as to such testimony is laid down by Wharton in this language: "It is well settled that the character of an injury may be explained by exclamations of pain and terror at the time the injury is received, such declarations and exclamations being part of the res gestæ. So, when the nature of a party's sickness or hurt is in litigation, declarations to his physician or nurse during such sickness-his object being to explain his symptoms-may be received as part of the testimony, and explanatory of the conclusions of such physician or nurse. Immediate groans and gestures, as indicating suffering, are, a fortiori, admissible. But declarations as to present pain, which are not instinctive, but are made when there has been an opportunity to think over the matter in reference to prospective litigation, are inadmissible when the declarations involve a statement of the cause of the injury, though, when offered as instinctive indications of pain, they are admissible to prove such pain, whenever at issue, no matter how long after the injury received. Declarations to prove past pain have also been held admissible when made to a physician or nurse for the purpose of enabling him to form his opinion in the case." Whart. Ev. § 268. The declarations made by plaintiff to his physician in this case were not made in connection with a statement of how the injury was received.

They do not appear to have been other than instinctive indications of existing pain, and, under the rule stated, were admissible. No error is shown in admitting the testimony. Finding that there was no reversible error presented in the assignments of error, we conclude that the judgment of the lower court ought to be affirmed, and it is so ordered. Affirmed.

CHICAGO, R. I. & T. RY. CO. v. BOYLES. (Court of Civil Appeals of Texas. Nov. 30, 1895.)

RAILROAD COMPANIES-CARRYING PASSENGER BE

YOND DESTINATION-DAMAGES.

1. Where a station is duly called by the brakeman, and a passenger, relying on the promise of the conductor to notify her personally when the train arrived there, fails to hear it announced, and is carried past, her whole attention being occupied at the time by a sick child, the carrier is not responsible, unless the conductor had knowledge of the child's illness, or of the necessity that might require the mother's exclusive attention to its needs, when he made the promise.

2. In an action against a railroad company for carrying a passenger beyond the place where she was to alight and take another line of railway, the fact that such passenger was to be met at a station on such other line, and thence transported to a place in the country where her sick child would receive medical treatment, and that, in consequence of delay caused by defendant's neglect to put her off at the proper place, she suffered mental anguish, is not a proper element of damages to go to the jury; it being neither averred nor proved that defendant had knowledge of these facts.

Appeal from Montague county court; Levi Walker, Judge.

Action by J. A. Boyles against the Chicago, Rock Island & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Thomas & McDonald, for appellant.

TARLTON, C. J. On May 26, 1893, Mrs. Boyles, the wife of appellee, J. A. Boyles, was, with her sick child, a passenger on the train of appellant. She took passage at El Reno, in the Indian Territory, for Ringgold, a station on the appellant's line in Montague county, Tex. The latter station was her point of destination on the appellant's line, but her point of ultimate destination was the home of her sister in the country, 4 or 5 miles from the town of St. Jo, a station in Montague county on another line of railway. In going to St. Jo by rail, it became necessary for Mrs. Boyles to remain all night at Ringgold. She was carried by the appellant beyond the latter station, to Bowie, a station some 20 miles further south, whence, on the next day, she was brought back, free of charge, by the appellant to Ringgold. On account of the alleged negligence of the company in taking her beyond her station, her husband brought this suit, and recovered a verdict and judg ment in damages for the sum of $75, from which this appeal is prosecuted. The fact