the roads, and did not tend to prove more. The court was right in excluding this evidence. It was legally insufficient to sustain a verdict upon, and hence the court properly withdrew it.

On the whole case no reversible error is discovered, and the judgment is affirmed.

BATTLE, J., absent.

ST. LOUIS & S. F. R. CO. v. BOWMAN. (Supreme Court of Arkansas. June 10, 1903.) 1. GARNISHMENT-REPEAL OF STATUTE.

Act Feb. 27, 1867 (Laws 1866-67, p. 157; Kirby's Dig. § 3707), providing that, when a judgment before a justice exceeds $100 and plaintiff desires the benefit of garnishment thereon, he may file in the office of the circuit court clerk a transcript of the judgment, which the clerk shall enter on the judgment docket and on which he shall issue to any county a writ of garnishment, is repealed by implication by Act 1889, entitled "An act to provide the procedure in judicial garnishment" (Acts 1889, p. 168), which omits any provision similar to section 2 of the act of 1867, but re-enacts section 3 thereof, providing that a judgment obtained before a justice in one county may be filed with a justice in another county and a writ of garnishment issued thereon.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, § 242.]

2. SAME JUSTICE'S JUDGMENT-WRIT TO ANOTHER COUNTY.

Under Kirby's Dig. 88 4631-4633, providing that the certified copy of a justice's judgment for more than $10 may be filed in the office of the clerk of the circuit court of the county and entered on the judgment docket of said court, and that every such judgment, from the time of filing the transcript, shall be a lien on real estate in the county to the same extent as a judgment of the circuit court, and shall be carried into execution in the same manner and with like effect as judgments of such circuit court, and section 4634, providing that, after the filing in the office of the clerk of the circuit court of the transcript of a justice's judgment, execution cannot be issued by the justice, and section 3705, providing that writs of garnishment may be issued from the circuit court of one county to any other county, a writ of garnishment may issue to another county from a circuit court on a justice's judgment filed therein.

Appeal from Circuit Court, Pike County; James S. Steele, Judge.

Garnishment proceedings by one Bowman against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff. Garnishee appeals. Affirmed.

Appellee recovered judgment against John R. Probst for $125 before a justice of the peace of Polk county, and later filed a certified transcript of the same in the office of the clerk of the circuit court of that county, and the clerk entered such judgment on the docket of that court for judgments and decrees, as provided by statute. Thereafter appellee filed proper allegations and interrogatories, and sued out a writ of garnishment directed to the sheriff of Sebastian county summoning appellant to answer as garnishee. Appellant appeared on the return

day, and filed a special plea to the jurisdiction of the court on the ground that a writ of garnishment cannot be issued to another county from a judgment rendered by a justice of the peace. The court sustained a demurrer to this plea. The garnishee failed to make further answer, and judgment was rendered for the full amount of the plaintiff's judgment, and an appeal was taken by the garnishee to this court.

L. F. Parker and B. R. Davidson, for appellant. S. A. Downs, for appellee.

McCULLOCH, J. (after stating the facts). The General Assembly passed an act, approved February 27, 1867 (Laws 1866-67, p. 157), amendatory of the then existing garnishment statute, section 2 of which act is as follows: "When a judgment before a justice of the peace in any county, together with the interest accrued on the same and the costs, amounts to more than $100, and the plaintiff, or any other person having the right to collect the said judgment, may desire to have the benefit of garnishment thereon, it shall be lawful for such person to file in the office of the clerk of the circuit court a transcript of such judgment, certified by such justice of the peace, and the clerk shall enter the same on the judgment docket in his office, and, at the request of such person so filing the same, shall issue to any county in the state a writ or writs of garnishment thereon." This section has been brought forward in subsequent digests of the laws of the state, and is found in Kirby's Dig. § 3707.

The

Appellant contends that this section has been repealed and is no longer in force. General Assembly of 1889 enacted a statute, the title of which is "An act to provide the procedure in judicial garnishment" (Acts 1889, p. 168), omitting any provision similar to section 2 of the act of February 27, 1867, but re-enacting section 3 of that act, providing that a judgment obtained before a justice of the peace in one county may be filed with some justice of the peace in another county, and a writ of garnishment or execution issued thereon. Repeals by implication are not favored. But, where the later of two statutes covers the whole subject-matter of the former, and it is evident that the Legislature intends it as a substitute, the prior act will be held to have been repealed thereby, although there may be no express words to that effect, and there be in the old act provisions not in the new. Pulaski County v. Downer, 10 Ark. 588; State v. Jennings, 27 Ark. 419; Mears v. Stewart, 31 Ark. 19; Davies v. Holland, 43 Ark. 425; Dowell v. Tucker, 46 Ark. 438; Wood v. State, 47 Ark. 488, 1 S. W. 709; St. Louis, I. M. & S. Ry. Co. v. Richter, 48 Ark. 349, 3 S. W. 56; Inman v. State, 65 Ark. 508, 47 S. W. 558; Wilson v. Massie, 70 Ark. 25, 65 S. W. 942.

Applying the doctrine established by these decisions, it must be held that section 3707, Kirby's Dig., has been repealed. It does not follow, however, that there is no provision in the law for the issuance of writs of garnishment to another county from the circuit court upon a judgment of a justice of the peace filed therein. On the contrary, we hold that under section 3705 of the garnishment statute the writ can be issued upon such judgment filed in the circuit court; and this view of the law makes the repeal of section 3707 all the more obvious, for the reason that the same method of enforcement is provided in the latter statute. Kirby's Dig. 88 4631-4633, provide that the certified copy of a judgment for more than $10, exclusive of cost, recovered before a justice of the peace, may be filed in the office of the clerk of the circuit court of the county, and entered on the judgment docket of said court, and that "every such judgment, from the time of filing the transcript thereof, shall be a lien on the real estate of the defendant in the county, to the same extent as a judgment of the circuit court of the same county, and shall be carried into execution in the same manner and with like effect as the judgments of such circuit courts." The effect of this provision is to completely transfer the judgment from the inferior to the superior court, and give it the same force and effect and the same remedies for enforcement as if the judgment had been originally rendered by the latter court. Section 10 of the act of 1889 (Kirby's Dig. § 3705) provides that "writs of garnishment may be issued from the circuit court of one county to any other county of the state"; thus authorizing the issuance of such writs upon all judgments of the circuit court, those rendered by justices of the peace and certified copies of which have been properly filed and docketed in the office of the circuit court, as well as judgments originally rendered by that court.

We do not overlook the decision of this court in Thompson v. Kirkpatrick, 18 Ark. 580, where it was held that under sections 134, 135, c. 87, of the Revised Statutes of 1838, which are identical in terms with sections 4631-4633 of Kirby's Digest, a writ of garnishment could not be issued from the circuit court upon a judgment of a justice of the peace filed in the circuit court. Chief Justice English there said: "The object of this statute was to enable the plaintiff in a justice's judgment to obtain satisfaction thereof by a sale of the real estate of the debtor, which cannot be done by an execution issuing from the justice. Neither this nor any other statute authorizes the issuance of a garnishment from the clerk's office upon such judgment, nor the determination of such garnishment in the circuit court." This was tantamount to holding that no remedy was afforded by this

statute, except for the creation and enforcement of a lien of the judgment rendered by a justice of the peace upon real estate owned by the defendant, and that the judgment still remained upon the docket of the justice as a judgment of his court, with all the statutory methods of enforcement by execution or garnishment intact. The next succeeding section (136) provided that execution might be issued at any time (without exception) by the justice who rendered same. Section 53 of the act of April 29, 1873, "to define the jurisdiction, and regulate the course of proceeding in the courts of justices of peace in civil actions" (Laws 1873, p. 443; Kirby's Dig. § 4634), wrought a radical change with respect to judgments of justices after the same have been filed and docketed in the office of the clerk. It provides, in effect, that thereafter an execution cannot be issued by the justice. Clearly, the effect of sections 4631-4633, in connection with this section (4634), is to provide a complete transfer of such judgments from justices to the circuit court, with all the remedies for enforcement thereof given to judgments rendered by the latter court. This change in the law brought about a more harmonious condition, and prevents any conflict from arising, by reason of the judgment being in force in the circuit court for the purpose of enforcement by one method, and in force with the justice who rendered it for the purpose of enforcement by other methods. No such conflict can arise now, since it becomes fully and for all purposes the judgment of the circuit court. This view is also in harmony with sections 10 and 11 of the garnishment statute (Kirby's Dig. §§ 3705, 3706), which give the plaintiff in a judgment rendered by a justice the choice of two methods of reaching by gar nishment a debtor of the defendant residing in another county. He can either file a transcript of his judgment in the office of the clerk of the circuit court, and sue out a writ of garnishment from that court under section 3705, or file it before some justice in the county where the garnishee resides, and sue out the garnishment there under section 3706. When the judgment does not exceed $10, only the latter method of enforcement against a garnishee in another county is open.

Learned counsel for appellant urge the hardship which this construction of the statute entails upon a garnishee, especially a railroad corporation, in being required to answer in a garnishment proceeding in a distant county; but this should be addressed to the lawmakers as a reason for a change in the law, so as to ameliorate the alleged hardship. The same reason might be urged against the provision of the statute allowing the issuance of a writ of garnishment to another county upon a judgment rendered by any court.

The court did not err in overruling the special plea of the appellant, and the judgment is affirmed.

ST. LOUIS SOUTHWESTERN RY. CO. v. KNIGHT.

(Supreme Court of Arkansas. July 22, 1905.) CARRIERS-CARRYING PASSENGER PAST STA

TION-DAMAGES-HUMILIATION.

In an action against a railroad company for injuries alleged to have been sustained by a passenger, who, boarding a train that did not stop at the station to which he wished to go, voluntarily left the same after it had passed the station about a mile and a half, and walked back, there was nothing to indicate that plaintiff had suffered any humiliation; and hence an instruction authorizing the jury to award damages for humiliation was erroneous.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1082.]

Appeal from Circuit Court, Prairie County; Geo. M. Chapline, Judge.

Action by S. H. Knight against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action by S. H. Knight against the St. Louis Southwestern Railway Company for being put off of the train a way from the station to which he wished to go. The facts are briefly as follows: On the 4th day of March, 1902, S. H. Knight purchased a ticket from the St. Louis Southwestern Railway Company to go from Stuttgart to Ulm, a station on the railroad of the company seven miles north of Stuttgart. He paid 21 cents for the ticket and boarded the northbound passenger train about 3 o'clock in the afternoon. By some mistake the train did not stop at Ulm; but, so soon as Knight discovered that the train was passing by the station to which he desired to go, he notified the conductor and brakeman, who stopped the train about a mile and a half north of Ulm. Knight asked the conductor to take him back to the station. The conductor refused to do so, but told him he would carry him on and let him come back on the next train. The conductor testified that he notified Knight that this next train would bring him back to Ulm in about two hours, but Knight says that he did not do so, and that he declined to be carried to the next station for the reason that, as the time for the other train to have gone south was already past, he supposed that it had already gone, and that if he went farther he would not get to Ulm until the next day. He stated that he was not in good health, and that it was raining, but that, as his horse and buggy were at Ulm waiting for him, he chose to get off the train and walk back. He testified that he got wet and was made sick with la grippe, and suffered several days from the effect of the exposure. The court gave the jury the following instruction on the measure of damages: "If

you find for the plaintiff, you may consider, in estimating his damages, the delay caused by being carried by his station; the time and trouble or inconvenience of walking back to the station; exposure to the weather, if you find it was bad, and injury to his health, if any, caused by such exposure; medical expense, if any, caused thereby; and humiliation he might have undergone by such treatment, caused by such wrongful acts of defendant's agents in carrying him by his station." To the giving of which exceptions were at the time saved. The jury returned a verdict in favor of plaintiff for the sum of $150, and the court gave judgment accordingly. Defendant appealed.

Sam' H. West and J. C. Hawthorne, for appellant.

RIDDICK, J. (after stating the facts). This is an appeal by the railway company from a judgment against it for $150 for damages caused a passenger for carrying him a mile and a half beyond his station. It is admitted that the train overshot the station and carried the plaintiff some distance beyond it. According to witnesses for plaintiff he was carried a mile and a half or two miles beyond his station, while the testimony for the defendant tends to show that the distance beyond the station at which he was put off was only half a mile. The defendant does not deny that plaintiff is entitled to some damages, but contends that the court erred in instructing the jury as to the measure of damages, and that the verdict is excessive.

The court told the jury that, among other elements of damages, they might allow plaintiff damages for the "humiliation he might have undergone by such treatment caused by the wrongful acts of defendant's agents in carrying him by his station." Now, the defect in this instruction is that it gave the jury the authority to allow damages to plaintiff for humiliation, if they saw proper to do so, when there was no evidence to sustain such a finding. The mere fact that a passenger is accidentally or carelessly carried by his station, while it may cause him inconvenience and annoyance, involves no reflection or insult to him, and furnishes no reason why he should feel humiliated. But this is all that is shown here; for the employés in charge, while they may have been careless, were guilty of no rude or offensive conduct, and this instruction should not have submitted the matter of humiliation to the jury as a possible element in the case.

Counsel for appellee contends that this instruction was not erroneous, because it does not assume that the appellee was humiliated, but submits that question to the jury for them to determine. But it is improper to submit a question to the jury that has no evidence to support it. The instruction does not assume that the plaintiff was humiliated, but it assumes that there were facts in

evidence tending to show that he was bu miliated. As before stated, there were no such facts, and as, under this instruction, the jury may have allowed a sum for the humiliation of plaintiff, and thus increased the damages, the judgment must be reversed and a new trial granted.

It is so ordered.

FORD et al. v. H. C. BROWN & CO. et al. (Supreme Court of Tennessee. March 31, 1905.) 1. CERTIFICATE OF DEPOSIT-INDORSEMENTBONA FIDE INDORSEE-NOTICE.

Two certificates of deposit were drawn, payable, one to C., "trustee," and the other to C., "trustee of B. F." At the time they were wrongfully indorsed by the trustee in the same form, one of them had almost 12 months to run, and the other 6 months before maturity, and both drew interest to maturity only, and were not subject to check. Held, that the certificates themselves gave actual notice to the indorsee that the paper represented a trust fund, and obligated such indorsee to inquire into the right of the trustee to dispose of it, within Negotiable Instruments Law, § 56 (Acts 1899, p. 150, c. 94), providing that to constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.

[Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 842--846.]

Appeal from Chancery Court, Davidson County; John Allison, Chancellor.

Bill by Betty Ford and others against H. C. Brown & Co. and others. From a judgment in favor of plaintiffs, affirmed by the Court of Chancery Appeals, defendants appeal. Affirmed.

John Ruhm, for complainants. Wheeler & Trimble and Jas. A. Ryan, for defendants. Walter Stokes, for defendant First National Bank.

MCALISTER, J. Complainant exhibited this bill against the defendants, Henry C. Brown, Fred Laitenberger, and Jesse Trinum, as individuals and as a partnership using the firm name of H. C. Brown & Co., against the First National Bank of Nashville, Tenn., and the Chattanooga Savings Bank. The principal object of the bill was to enjoin the Chattanooga Savings Bank against the payment of two certificates of deposit which that bank had issued to Woodworth as trustee for complainant Betty Ford, and which certificates of deposit had been indorsed and transferred by Woodworth to H. C. Brown & Co. in payment of a gambling indebtedness. H. C. Brown & Co. indorsed said certificates of deposit to the First National Bank of Nashville, and that bank had forwarded the certificates to Chattanooga, and was seeking to collect them from the Chattanooga Savings Bank at the time the original bill herein was filed. It is alleged that these two certificates of de

"No. 13704.

"Chattanooga Savings Bank. Chattanooga, Tenn., March 21st, 1903.

"C. N. Woodworth, trustee for Betty Ford, has deposited in this bank thirteen hundred and seventy-five & 55/100 dollars ($1,375.55), payable to the order of same twelve months after date, with interest to maturity only at the rate of 4% per cent. per annum upon the return of this certificate properly indorsed. Not subject to check.

"R. W. Barr, Cashier."

The Chattanooga Savings Bank answered the bill, and averred that it had issued the certificates, but had refused to pay the same, because they were not due, and because it had received notice from Betty Ford not to pay them; that it had no interest in the controversy, but was willing to pay the certifi cates to whomsoever the court might adjudicate they should belong.

The defendants H. C. Brown & Co. also answered the bill, denying all of its material allegations.

The First National Bank of Nashville also answered, denying all knowledge upon its part of the gambling transactions, and all knowledge of the relations between Woodworth and Betty Lord, and denied any knowledge that its codefendants had conducted any gambling establishment or rooms; denied all knowledge of the intoxication of Woodworth, or of his transaction with H. C. Brown & Co. with regard to said certificate. It admitted, however, that on April 24, 1903, these certificates of deposit were presented by H. C. Brown & Co. to the First National Bank at Nashville for discount, and avers that it purchased said certificates from H. C. Brown & Co., and paid their face value in cash, and then sent the certificates to Chattanooga for collection. It avers that it took these certificates in due course of trade for a valuable consideration, and without any notice of the rights and equities of Betty Ford, or of any one else, and avers that it is

an innocent holder for value in due course of trade and without notice.

The Court of Chancery Appeals finds that C. N. Woodworth, having possession of those certificates, brought them to Nashville, Tenn., and on or about the 22d or 23d, or, possibly, the 24th or 25th, of April, 1903, he went to the gambling house located over the Climax Saloon on Cherry street, in Nashville, Tenn., and there engaged in gambling. It is shown he drank heavily and lost large sums. While thus drinking and gambling, he not only lost a large amount of his own money, but he also indorsed and transferred these certificates of desposit belonging to the complainant, upon which he obtained money and chips to be used in gambling. He lost and gambled away all of the money and chips so obtained, except about the sum of $600 or $700, which the gamblers in charge of the place offered to repay him, but which he at the time declined.

That court further finds that H. C. Brown & Co. came into possession of these certificates, and on the 25th of April, 1903, took them to the First National Bank of Nashville, and there sold and disposed of them to the First National Bank for cash. The bank, overlooking the fact that the certificates were not due, took them for cash, as H. C. Brown & Co. were among their regular customers. They paid cash for them, and sent them to Chattanooga, through their correspondent at that place, for collection. In the meantime, C. N. Woodworth, having become to some extent rational, telegraphed the Chattanooga Savings Bank at Chattanooga not to pay these certificates. The Bank at once notified the mother of C. N. Woodworth and Betty Ford, who immediately advised the bank not to pay or recognize these certificates.

It further appears that when these certificates were first presented to the First National Bank, they bore the indorsement of complainant C. N. Woodworth and the indorsement of H. C. Brown & Co., but at that time the First National Bank refused to take the certificates, because one of them was not properly indorsed; that is to say, it was simply indorsed by C. N. Woodworth, when it should have been indorsed, as it was payable on its face, by "C. N. Woodworth, Trustee for Betty Ford." Thereupon H. C. Brown & Co. took the certificates back, and returned with them in a short time properly indorsed.

The Court of Chancery Appeals finds as a matter of fact that this new indorsement was made by C. N. Woodworth. After the indorsement was corrected, the certificates were taken back to the First National Bank, and on the 25th of April the teller of the bank bought the certificates in question from H. C. Brown or H. C. Brown & Co., paying cash therefor, overlooking the fact that the certificates were not due. The officers of the First National Bank denied all knowledge as to how H. C. Brown & Co. acquired these certifi cates, and all knowledge of the transaction

between Woodworth and H. C. Brown & Co. and their employes, or of any person who obtained these certificates of C. N. Woodworth, and the Court of Chancery Appeals finds there is nothing in the record to indicate that these officers had any knowledge of the transactions mentioned.

The Court of Chancery Appeals further finds there is no evidence in the record from which we are justified in finding that the officers of the bank had any knowledge in regard to the gambling carried on over the Climax Saloon.

The Court of Chancery Appeals finds that H. C. Brown & Co. was affected with full notice and had knowledge of this embezzlement on the part of Mr. Woodworth, and of this violation of his trust, and had full knowledge of his want of legal right and capacity to transfer this property. They must have known, and did know, that they were taking the certificates in violation of this trust, and taking funds which Woodworth was practically embezzling. As to the First National Bank, there is no proof to show that the officers of the bank had any knowledge of these transactions, or even that H. C. Brown & Co. conducted gambling rooms over the Climax Saloon, and hence the rights of the First National Bank must depend upon the facts disclosed upon the face of the paper itself and the indorsements thereon.

As already stated, one of these certificates was payable to C. N. Woodworth, trustee for Betty Ford, and the other simply to C. N. Woodworth, trustee. One of them was dated March 21, 1903, due 12 months after date, and the other was dated October 7, 1902, and due 12 months after that date. Each of them bears interest to maturity only at the rate of 42 per cent. per annum. It is disclosed on the face of each certificate that it is not subject to check, but is an interestbearing certificate of deposit. The first certificate, which was made payable to C. N. Woodworth, trustee for Betty Ford, was indorsed by C. N. Woodworth, trustee, and afterwards the words, "for Betty Ford" were added by him. The other certificate was simply indorsed "C. N. Woodworth, Trustee."

That court further finds that these certificates were sold and transferred by H. C. Brown to the First National Bank of Nashville on the 25th day of April, 1903. On the 24th of April, 1903, at 7:45 a. m., C. N. Woodworth had telegraphed the cashier of the Chattanooga Savings Bank, which had issued these certificates, not to pay them. So when the certificates were sent to Chattanooga for collection, the Chattanooga Savings Bank refused to pay them, on the ground that they were not due and on the further ground that Betty Ford contested the right of the First National Bank to them. It appears, therefore, that before the First National Bank took these certificates, all the authority