meaning of the law so as to preclude the defendant from setting up equities that existed between him and the Uinta Hereford Cattle Company, the payee named in the note. The test to be applied, therefore, in this case is, Was the note sued on a negotiable instrument within the meaning of the statute of this state defining and governing such instruments? Sess. Laws 1903, p. 380. We may note in passing that the uniform negotiable instrument law is in substance merely a codification of the law-merchant on the subject. Appellant contends that since the note sued on contained an express waiver on the part of the sureties, guarantors, indorsers and maker of any and all rights of defense on account of extensions of time of payment of the note, it thereby rendered the note nonnegotiable. Subdivision 3 of section 1 of the negotiable instrument law requires that an instrument in order to be negotiable "must be payable on demand or at a fixed or determinable future time." Section 4 of the act provides as follows: 93 "An instrument is payable at a determinable future time, within the meaning of this act, which is expressed to be payable: First, at a fixed rate period after date or sight; or, second, on or before a fixed or determinable future time specified therein, or third, on or at a fixed period after the occurrence of a specified event, which is certain to happen, though the time of happening be uncertain. An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect."

Section 184 of the act defines a negotiable promissory note, and, among other requisites, provides that it must engage "to pay on demand or at a fixed or determinable future time a sum certain in money, to order or to bearer." The note sued on in this case cannot be said to comply with these provisions of the statute. Its closing sentence provides that "No extension of time of payment, with or without our knowledge, by the receipt of interest or otherwise, shall release us or either of us from the obligation of payment." This is an express contract to the effect that the time of payment may be extended to any one or all of the sureties, guarantors, indorsers or makers of the note without notice to all or any one of them. This undoubtedly renders the note non-negotiable under all the authorities that have been brought to our attention on the subject. By section 52 of the act (Sess. Laws 1903, 339), in order to establish that one is "a holder in due course" of commercial paper, the instrument must be "complete and regular upon its face."

In Matchett v. Anderson Foundry & Machine Works, 29 Ind. App. 207, 94 Am. St. Rep. 272, 64 N. E. 229, the note provided that "The drawers and indorsers severally waive presentment for payment, protest, and notice of protest, and on payment of this note, and all defenses on the ground of any extension of the time of its payment that may be given by the holder or holders to them or either of them." In that case, the Indiana court of appeals held that the note was nonnegotiable, and was subject to defense on all the equities that the maker held against the payee. It will be noticed by comparison that the stipulation contained in that note is almost 94 identical with the stipulation in the note at bar, and was to the same effect as the one here.

For other cases in point, see Smith v. Van Blarcom, 45 Mich. 371, 8 N. W. 90; Citizens' Nat. Bank v. Piollet, 126 Pa. 194, 12 Am. St. Rep. 860, 7 Atl. 603, 4 L. R. A. 190; Miller v. Poage, 56 Iowa, 96, 41 Am. Rep. 82, 8 N. W. 799; Woodbury v. Roberts, 59 Iowa, 348, 44 Am. Rep. 685, 13 N. W. 312; Glidden v. Henry, 104 Ind. 278, 54 Am. Rep. 316, 1 N. E. 369; Mitchell v. St. Mary, 148 Ind. 111, 47 N. E. 224; Second Nat. Bank v. Wheeler, 75 Mich. 546, 42 N. W. 963.

The note is non-negotiable and the indorsee holds it subject to all the equities, counterclaims and defenses that existed between the maker, Bolan, and the payee, Uinta Hereford Cattle Company: Eaton & Gilbert on Commercial Paper, sec. 71, p. 354, and cases cited; 2 Am. & Eng. Ency. of Law, 2d ed., 253. As to the sufficiency or merit of the defense set up on the alleged guaranty of the livestock and damages claimed, we express no opinion, as that question is not properly before

us.

The conclusion we have reached on the foregoing questions renders it unnecessary for us to consider or pass upon any of the other assignments of error presented on this appeal. The judgment must be reversed, and it is so ordered, and the cause is remanded to the district court, with direction to permit the parties to amend their pleadings if they so desire, and to grant them a new trial. Costs awarded in favor of appellant.

Sullivan, J., and Stewart, J., concur.

The Service of Process on foreign corporations where they have failed to designate an agent upon whom service can be made is discussed in the note to Abbeville etc. Co. v. Western etc. Co., 85 Am. St. Rep. 905.

Conditions and Agreements which destroy the negotiability of a writing otherwise negotiable are discussed in the note to Kimpton v. Studebaker Bros. Co., post, p. 185.

TARR V. OREGON SHORT LINE RAILROAD COMPANY. [14 Idaho, 192, 93 Pac. 957.]

RAILWAYS-Statute Requiring the Affixing of Checks to Baggage. Under the provisions of section 2674, Revised Statutes, a railroad corporation doing business in this state is required to affix a check to every parcel of baggage received by it, and to deliver a duplicate thereof to the passenger or person delivering the same, and if such check is refused on demand therefor, the railroad company is liable in the sum of twenty dollars to such person, and, in addition thereto, cannot collect any fare or toll from such passenger. (p. 154.)

RAILWAYS-Failure to Give Checks for Baggage Entitles the Passenger to Refuse Payment of Fare.-Where a railroad company has no night agent at a station to receive and check baggage, but stops its train at such station and takes on a passenger and his baggage, and after the passenger boards the train and demands a check for his baggage, and declines to pay his fare or deliver up his ticket until he receives such check, and the employés of the company in charge of the train neglect and refuse to deliver a baggage check, and, on the contrary, eject the passenger from the train, the railroad company will be held liable in damages for the tort so committed. (p. 155.)

RAILWAYS-Passenger, Right of to Insist upon Baggage Checks Before Surrendering His Ticket.-Where a passenger purchases a ticket, and on the arrival of the train at the station points out to the conductor and brakeman his baggage, and they receive the same and take it on board the train, and the passenger boards the same train for the purpose of transportation to another station on the line of the company's road, and demands of the conductor on the train a baggage check, he is entitled to receive such check before delivering up his ticket or paying his fare, and on failure to receive such baggage check and refusal to pay his fare until he does receive it, he does not thereby become a trespasser on such train, and the employés of the company have no right to eject him from the train until they have either delivered to him his baggage check or until he has reached the station to which he notified the employés receiving the baggage that he desired the same checked. (p. 156.)

RAILWAYS-Penalty Requiring Free Transportation of Passenger Because of the Failure to Check His Baggage.-Under the provisions of section 2674, the liability to furnish the passenger free transportation to the point of his destination in case of refusal to deliver him a check for his baggage is as much a part of the penalty for refusal to check the baggage as is the twenty dollars' eash penalty named therein. (p. 156.)

RAILWAYS-Fourteenth Amendment, Penalties, When not Forbidden by. The requirement of section 2674, Revised Statutes, that a railroad company shall not collect toll or fare from a passenger when it fails, neglects or refuses to deliver the passenger a check for his baggage, is valid and binding upon such company as a part of the penalty for its failure and neglect to comply with the statute, and is in no sense a taking of property without due process of law within the inhibition of the fourteenth amendment to the constitution of the United States. (p. 157.)

JURY TRIAL-Instructions Concerning Matter not in Evidence. The instruction, "That every particular phase of the injury may enter into the consideration of the jury in estimating compensation, loss of time with reference to the injured party's con

dition and ability to earn money, his loss from permanent impairment of faculties, mental and physical pain, suffering and disfigurement, are all elements to be considered by the jury in estimating plaintiff's damages," while correct as a general principle of law, is erroneous in a case where there is no allegation of loss of time and no evidence has been introduced showing the loss of any particular or specified time, or the value thereof or amount of damage sustained by reason of loss of time. (pp. 158, 159.) DAMAGES-Evidence of Mental and Physical Pain, When not Required. As to mental and physical pain and suffering and humiliation, evidence need not be offered as to its value. This is a question entirely for the jury. (p. 159.)

DAMAGES-Evidence of Loss of Time.-Where a party claims special damages for loss of time, he must prove both the amount of time lost and its value. The jury must be governed by the evidence. (p. 159.)

JURY TRIAL-Instructions Erroneous but not Prejudicial.— Where the court has instructed the jury that they must be governed by the evidence in assessing damages, and that they must find the data therefor within the evidence, and the entire record in the case discloses that no claim has been made for damages on account of loss of time, and no evidence has been introduced thereon, and it is reasonably clear from the record that the jury did not consider such element in assessing damages, an erroneous instruction to the effect that loss of time is a proper element to be considered in such cases is not within itself such error as will cause a reversal of the judgment. (p. 160.)

APPEAL AND ERROR-Jury Trial-Duty to Consider All the Instructions.-All the instructions given in a case must be read and considered together as a whole, and where they are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the instructions as a whole rather than to an isolated portion thereof. (p. 160.)

P. L. Williams and D. Worth Clark, for the appellant.

G. F. Hansbrough, for the respondent.

197 AILSHIE, C. J. This is an appeal from the judgment and order denying a motion for a new trial. The appellant recovered judgment in the lower court against the defendant for the sum of one thousand dollars damages on account of the agents and employés of the defendant company wrongfully and unlawfully ejecting him from one of its railway trains. The respondent, Jacob E. Tarr, was, on the twenty-third day of December, 1905, residing with his family, at Shelley, Idaho, and on the evening of that day purchased from the ticket agent at that place three tickets to Pocatello. It seems that the railway company had no night agent at Shelley, and that it was the practice of the company to take on baggage without the same being checked, on the passenger's pointing out his baggage to the conductor or brakeman or other employé of the company. 198 About 2 o'clock on the morning of the 24th, the south-bound pas

senger arrived at the station where respondent, together with his wife and daughter, was waiting to board the train. When the train stopped, the respondent pointed out to the conductor and brakeman a trunk and roll of bedding he had on the platform, and told them that he wanted to take that baggage with him to Pocatello. When the respondent asked them to put the baggage on board, they made some profane remarks concerning it, but put the trunk on the baggage-car and left the roll of bedding. No question is raised here concerning the roll of bedding that was left on the platform. Respondent helped his wife and daughter on the train. After the train pulled out, the conductor came through taking up tickets and collecting fare, and when he came to respondent, the respondent gave him one ticket and told him that he had a trunk on board for which he wanted a baggage check. He also told the conductor that when he got his check for his trunk, he would give him the other two tickets. The conductor insisted on his surrendering up the tickets, but the respondent declined to do so. This demand for the tickets was made two or three times, the conductor telling him that if he did not surrender them he would put him off the train. Finally, when the train was about a mile out of the station of Blackfoot, the conductor came to respondent and told him if he did not surrender the tickets, he was going to put him. off. Respondent replied that he would not do so unless the conductor gave him a check for his trunk. Thereupon the conductor called the brakeman and the two of them proceeded to eject the respondent from the train. Before they had completely ejected him, he told the conductor that he would not give up the tickets, but that if he would let him ride to Pocatello, he would pay the fare in cash. They disregarded this offer, however, and put him off the train. It seems to be generally agreed by all the witnesses that the train did not fully stop but "slowed up," as the witnesses put it. As the last coach passed, respondent swung onto the platform, and as he did so, he encountered the brakeman, who kicked him off, and in his endeavor to do 199 so, injured and bruised respondent's hands and dislocated a thumb. When he was kicked off the train he was either struck by the brakeman one blow on the back over the lungs and another over the kidneys, which made bad bruises, or else he received those injuries when he fell from the moving train. Respondent was under the care of a physician for a couple of weeks, and the physician testified that he had a bad bruise over his lung and also over his kidneys, and that he had in