share in the estate of the testator as if he had en 1. A petition alleging that the defendant is liable in damages to the plaintiff, a married woman, for fraudulently procuring her to sign, as coprincipal with. another, a negotiable note payable to the defendant, when her undertaking was one of suretyship only, upon the express understanding that she should never be liable to pay the same, and that she was compelled by suit to pay the note to an innocent purchaser, who acquired the same before maturity for value, in due course of trade, sets forth a cause of action. 2. A promissory note containing words of negotiability, executed since the passage of the act of 1891 (Civ. Code, § 3667) providing that contracts to pay attorney's fees, in notes and like instruments, shall be void unless a plea be filed by the defendant and not sustained, is negotiable, notwithstanding an agreement in the note "to pay all costs of collection, including 10 per cent attorney's fees." (April 21, 1899.) The facts are stated in the opinion. ror. Messrs. J. M. Neel and Neel & Neel, for defendant in erior: RROR to the City Court of CartersvilleIn the case of a devise by a mother to chil-E dren generally, her illegitimate issue, recogto review a judgment in favor of plainnized by her as her children, would certainly tiff in an action brought to recover damages take, unless the contrary intention on the from defendant for fraudulently inducing part of the testatrix was clearly manifested plaintiff, a married woman, to become surein the will. Under the California law the ty on a note. Affirmed. question under consideration was the same as if the mother had devised her property to her children generally. The statute in this state allowing a bastard to inherit from his mother while throwing but little light on the question of the intention of a person who devised property to a woman with remainder to her children would certainly have great weight with the courts in construing a will made by the mother herself. On account of the natural affection which mothers bear to their offspring it would take a strong case to authorize the exclusion of illegitimate children of a mother from participating in property devised by her to her children. We have examined practically all of the cases cited in the very able and elaborate briefs of counsel in this case. We have referred to such as we believe required special attention in dealing with the case. The conclusion reached by us is supported by an almost unbroken line of authorities. The case must at last be decided upon what was the intention of Mrs. Marshall when she made the deed of trust. What she might have done for this unfortunate plaintiff if the deed or will had been made after he came into existence, we do not know; but that it was not her intention, by the language used in the deed, to provide for those of the class to which he belongs, hardly admits of doubt. Judgment affirmed. A married woman cannot bind herself by any contract of suretyship whether for her husband or for any other person. Code, § 2488; Saulsbury v. Weaver, 59 Ga. 254. But if she signs a negotiable note really as surety, but the fact of her suretyship does not appear on the face of the note, and if before maturity the note is transferred by the payee to a bona fide purchaser for value who has no notice of such suretyship or that the woman is a married woman, she will be held liable on the note to such innocent purchas er. Perkins v. Rowland, 69 Ga. 661; Strauss v. Friend, 73 Ga. 782; Temples v. Equitable Mortg. Co. 100 Ga. 506. The note signed by Mrs. Crawford as surety for Cobb to Jones as payee did not bind her, while held by Jones, he having full knowledge that she was a married woman and that she signed the note as surety only. But when Jones, in order to deprive her of her defense as against him, transferred the note before maturity to a bona fide purchaser, she was compelled to pay the note to such innocent purchaser. *Headnotes by COBB, J. NOTE. As to the liability for transferring a negotiable note to a bona fide holder so as to cut off defenses, see Nashville Lumber Co. v. All the Justices concur, except Lewis, Fourth Nat. Bank (Tenn.) 27 L. R. A. 519, and J., disqualified. note. Perkins v. Rowland, 69 Ga. 661; Temples | "again assured her that the note would never V. Equitable Mortg. Co. 100 Ga. 506. The strategy of Jones in procuring such signature as alleged in the declaration, his concealed purpose at the time, and his subsequent wrongful transfer, together with the compulsory payment of the note enforced from Mrs. Crawford, constitute a good cause of action in her favor against defendant Jones. Keener, Quasi Contracts, 397; Bleaden v. Charles, 7 Bing. 246; 2 Randolph, Com. Paper, §§ 727, 800. Where a married woman, even voluntarily, pays the debt of another, either by assumption or on a suretyship, she can recover back the money so paid to or for the use of a person having notice. Mills v. Hudgins, 97 Ga. 417; Lewis v. Howell, 98 Ga. 428. The legal principles and doctrines derivable from our books of law must be applied to new and ever shifting combinations of facts, and justice administered to suit each case. Bishop, Non-Contr. L. § 486. It is quite as reasonable and just to hold Jones liable to Mrs. Crawford for his wrongful transfer of the note made for the purpose of depriving her of a just and legal defense thereto and which resulted in loss to her, as to make one liable to a mortgage creditor for removing beyond the latter's reach a chattel covered by the mortgage, for the purpose of preventing the enforcement of the mortgage thereon, and which does prevent it and results in loss to the creditor. Harris v. Grant, 96 Ga. 211; Benton v. McCord, 96 Ga. 395. For full discussion of liability for transfer of a negotiable note to a bona fide holder so as to cut off defenses, see Nashville Lumber Co. v. Fourth Nat. Bank (Tenn.) 27 L. R. A. 519. Cobb, J., delivered the opinion of the court: Mrs. Crawford sued Jones for damages; alleging, in substance, as follows: That on March 10, 1897, petitioner was a married woman. On that date Jones, holding some claim or demand against Thomas H. Cobb, a son of petitioner by a former husband, for which claim petitioner was in no way liable, and had received no benefit therefrom, came to petitioner with a promissory note which had been signed by Cobb, payable to the order of Jones, for the sum of $230.50 principal, with interest at 8 per cent per annum, and "stipulating to pay all costs of collection. including 10 per cent attorney's fees," and asked petitioner to sign the same as surety. In order to induce her to do so, defendant stated that Cobb had requested her to sign, and assured her "that he would never trouble her with the note, and that she should never have to pay it," and on these statements petitioner consented to sign the note. After signing her name, she was about to add the word "surety" or "security," when the defendant begged her not to do that, saying that it was unnecessary, and be collected out of her." After obtaining the signature of petitioner to the note, the defendant, before its maturity, indorsed and transferred the same to L. S. Munford, who in turn transferred the note before maturity to F. M. Ford, receiver. These two indorsements and transfers were made for value in due course of trade, and without notice to either transferee that petitioner had any defense to the note. After the maturity of the note, Ford demanded payment from petitioner, which was refused because petitioner was ignorant at that time of the fact that either of the above-mentioned indorsees had taken the note in due course of trade without notice of her defenses, but, on the contrary, believed that they did have such notice. Upon her refusal to pay, Ford brought suit against both Cobb and petitioner, as joint makers, to which suit petitioner filed pleas setting up that she signed the note as surety, and was a married woman at the time of signing the same, and also that neither Ford nor Munford took the note in due course of trade for value before maturity, without notice of her defenses. Upon the trial of this suit, petitioner established by uncontradicted evidence that she signed the note as surety, and was a married woman at the time of signing the same, but failed to establish that Ford was not a bona fide holder before maturity for value, and without notice of her defenses, whereupon the jury returned a verdict against Cobb, as principal, and petitioner, as security, for the principal of the note, together with interest and 10 per cent attorney's fees, on the sole ground that Ford was a bona fide holder for value, without notice of the defenses set up by petitioner. Upon this verdict judgment was entered against Cobb, as principal, and petitioner, as security. Execution was issued upon this judgment, and, Cobb having no property out of which the money could be made, the execution was about to be levied upon the property of petitioner, whereupon, to protect her property from levy and sale, petitioner procured certain persons to pay off the execution, for which she is bound to repay them. Petitioner has demanded payment of this sum from the defendant, but he fails and refuses to pay the same. It is alleged that in defending the suit above-mentioned, and also in prosecuting the present action, petitioner has been put to considerable expense. It is further alleged and charged that Jones procured petitioner's signature to the note "by material misrepresentations, as hereinbefore set forth, and did so for the purpose and with the intention, at the time he procured the note, of indorsing and transferring the same before maturity to an innocent purchaser thereof, for the sole purpose of depriving petitioner of her just defense to said note, which said Jones well knew she could and would set up and prove against him, should he bring suit on said note against her." Damages are laid in the sum of $400, which sum is made up of the amount paid on the execution and the various items of expense petitioner has incurred sequent negotiation of the note to an inno- half against the payee, who had thus caused by reason of the suit against her on the note and of the present action. The court overruled a general demurrer to the plaintiff's petition, and the defendant excepted. The exact question now before us is pre-made complete a cause of action in her besented for the first time in this state, and, after a thorough investigation of the authorities, we have been unable to find any case exactly identical with the one now under consideration. When Mrs. Crawford signed the note that had been previously signed by her son, she was interested in no way whatever in the consideration; and hence her signature imposed upon her no liability, under the law, to anyone who had notice of the fact that her contract, though apparently that of a principal, was really one of suretyship only. Jones being cognizant of these facts, the paper was, in his hands, so far as Mrs. Crawford was concerned, absolutely worthless. Civil Code, $ 2488. If Mrs. Crawford had paid to Jones the full amount of this note, she would have had the right to recover the same from him. Mills v. Hudgins, 97 Ga. 417; Lewis v. Howell, 98 Ga. 428. As she appeared upon the face of the note to be a principal, and as she had a right, under the law, to bind her separate estate by a contract of this character, a purchaser of the note for value before maturity, and without notice of the fact that the contract was really one of suretyship, would have a right to enforce payment of the same. Perkins v. Rowland, 69 Ga. 661; Strauss v. Friend, 73 Ga. 782; Southern Mut. Bldg. & Loan Asso. v. Perry, 103 Ga. 800, and cases cited. The married woman would thus be compelled to pay the innocent holder of the note, but in so doing she would be discharging the obligation for the benefit of the payee who had transferred the same. If, therefore, a married woman could recover from the payee of the note, who had notice of the invalidity of her contract, an amount paid to him in satisfaction of the same, why should she not be allowed to recover from him the amount he has wrongfully compelled her to pay out for his benefit to another person? If Mrs. Crawford had, at the special instance and request of Jones, voluntarily paid a sum equal to the amount due on the note to a creditor of Jones, who had no notice of the invalidity of her contract, and Jones had then surrendered her note, under the principle of the cases above cited there would be no legal obstacle to her bringing suit against Jones for the amount paid out for his benefit. If this is true, does it not necessarily follow that, where she has been compelled to pay to a creditor of Jones, she would have a right to recover the amount thus extorted from her? Certainly would this be true when at the time the note was signed by her she attempted to sign in such a way that no liability would arise against her on the note in the hands of anyone, but was prevented from doing so by the fraudulent statements made to her by Jones that he did not intend to use the note in any way whereby she would be held liable thereon, which was, in effect, an agreement that the note would never be negotiated. The sub We It is contended, however, that it appears from the allegations in the petition that there is no liability, because the note was not Crawford negotiable, and therefore Mrs. could have successfully defended the suit thereon by a proper plea. The petition alleged that the note was payable to the order of the payee, which would make it negotiable by indorsement; but counsel for plaintiff in error contends that the stipulation in the note for the payment of attorney's fees renders the note nonnegotiable. It was held in Stapleton v. Louisville Bkg. Co. 95 Ga. 802, that "the fact that a promissory note payable to the order of a named payee con tains a stipulation to pay 'all costs, and ten | per cent on amount for counsel fees, if placed in the hands of an attorney for suit,' does not destroy its character as a negotiable instrument." It is contended, however, that that decision will not control in the present case, because the note upon which Mrs. Crawford was sued was executed after the passage of the act of 1891, now embodied in Civil Code, § 3667, providing that contracts to pay attorney's fees in notes or like instruments shall be void unless a plea or pleas be filed by the defendant and not sustained. The contract in the case cited authorized the collection of attorney's fees upon a condition, that is, if the note was "placed in the hands of an attorney for suit," and this condition was held not to destroy the negotiability of the note. The effect of the act referred to was to declare that contracts to pay attorney's fees in notes and like instruments should be collectible only upon the happening of one condition; that is, that a plea be filed by the defendant, and the same be not sustained. There is no difference in principle between this condition and the condition dealt with in the case cited, and for that reason the decision is controlling on the question now under consideration. The reasons which constrained the court in that case to hold that the note contained a promise to pay "a specific amount of money" are also applicable in the present case. As against a general demurrer, the petition set forth a cause of action against the defendant, and there was no error in overruling such a demurrer. A demurrer of this character does not raise the question as to what would be the measure of damages in such a case, and whether or not the plaintiff would be entitled to recover the amounts she has expended, or become liable for, as torney's fees by reason of the suit brought against her on the note, and in bringing the present action, is not now decided. Judgment affirmed. All the Justices concur. at ILLINOIS SUPREME COURT. NORTH CHICAGO STREET RAILROAD | great force and violence off the car and up COMPANY, Appt., APPEAL by defendant from a judgment of the Appellate Court, First District, affirming a judgment of the Superior Court for Cook County in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Affirmed. Statement by Craig, J.: This was an action brought by William F. Baur against the North Chicago Street-Railroad Company to recover damages for personal injuries alleged to have been received by reason of negligence of the railroad company. The declaration contains four counts. The first alleges that on the 29th day of January, 1896, the plaintiff was a passenger on a cable car of the defendant, on its Wells street line, and that while he was in the exercise of ordinary care the defendant so improperly and negligently managed its cable car and railroad that he was thrown with NOTE. For negligence in standing on platform of street car, see also Upham v. Detroit City R. Co. (Mich.) 12 L. R. A. 129; Hawkins v. Front Street Cable R. Co. (Wash.) 16 L. R. on the ground, whereby he received the injuries complained of. The second alleges that the plaintiff was a passenger upon a cable car of the defendant on its Wells street line, in the exercise of due care, and when the car had passed the intersection of Wells and Eugenie street the car upon which he was riding was suddenly jerked forward, whereby he was thrown from the car to and upon the ground, whereby he received the injuries complained of. The third alleges that on said date and at the said place the plaintiff was a passenger upon the car of the defendant, riding upon its platform, and while such passenger, and while in the exercise of ordinary care, the defendant so negligently and improperly managed its cable car and railroad that the plaintiff was thrown with great force and violence off the platform of the car, upon the ground, whereby he received the injuries complained of. The fourth alleges that at said time and place the plaintiff was a passenger upon a car of the defendant, and was standing upon the platform of the car, and that the defendant so carelessly and negligently managed its car that it was jerked violently, and without notice to the plaintiff, whereby the plaintiff was thrown from the platform of the car to and upon the ground, whereby he received the injuries complained of. To the declaration the defendant pleaded the general issue, and on a trial the plaintiff recovered a judg ment, which on appeal was affirmed in the appellate court. To reverse the judgment of the appellate court, the railroad company has appealed to this court. A. 808; Elliott v. Newport Street R. Co. (R. I.) 23 L. R. A. 208; Muldoon v. Seattle City R Co. (Wash.) 22 L. R. A. 794; and Vall v. Broadway R. Co. (N. Y.) 30 L. R. A. 626. Messrs. Egbert Jamieson and John A. Rose, for appellant: It was incumbent on the plaintiff to establish by affirmative proof that he was in the exercise of ordinary care, and this he entirely failed to do. Aurora Branch R. Co. v. Grimes, 13 Ill. 586; Illinois C. R. Co. v. Nowicki, 148 Ill. 29; Chicago & E. I. R. Co. v. Chancellor, 165 Ill. 438. The court erred in refusing to instruct the jury to find the defendant not guilty. Aurora Branch R. Co. v. Grimes, 13 Ill. 586; Abend v. Terre Haute & I. R. Co. 111 Ill. 202, 53 Am. Rep. 616; Illinois C. R. Co. v. Nowicki, 148 Ill. 29; Chicago & E. I. R. Co. v. Chancellor, 165 Ill. 438. If there was any evidence tending to establish care the question would be, of course, one exclusively for the jury; but whether such evidence existed was one exclusively for the court. As the evidence showed precisely what appellee was doing at the time of the accident, the question of whether he was exercising due care was a question for the jury. Matz v. St. Paul City R. Co. 52 Minn. 159; Ginna v. Second Ave. R. Co. 67 N. Y. 596; Kean v. West Chicago Street R. Co. 75 Ill. App. 38; Fleck v. Union R. Co. 134 Mass. 480; West Chicago Street R. Co. v. Nash, 166 Ill. 528. Craig, J., delivered the opinion of the court: At the close of all the evidence in the case, the defendant requested the court to instruct the jury to find the defendant not guilty. The court refused the instruction, and the defendant excepted, and the ruling of the court on the instruction is the only error relied upon to reverse the judgment. It may be conceded, as stated in the argument of counsel for appellant, that, in order to recover, it must appear from the evidence that at the time of the accident plaintiff was in the exercise of ordinary care, and that the defendant was guilty of negligence which was the proximate cause of the injury. It is, however, contended that the plaintiff at the time of the accident was not in the exercise of ordinary care, and that for this reason he cannot recover. In order to determine this question, a brief reference to the facts as established by the evidence is necessary. It appears from the record that plaintiff took the cable car, as a passenger, at Monroe and Dearborn streets, between 12 and Cothran v. Ellis, 125 Ill. 496; Commercial Ins. Co. v. Scammon, 123 Ill. 605; Hinckley v. Horuzdowsky, 133 Ill. 364, 8 L. R. A. 490; Bartelott v. International Bank, 119 Ill. 271; Simmons v. Chicago & T. R. Co. 110 111. 346; Wabash, St. L. & P. R. Co. v. Coble, 113 Ill. 117; Frazer v. Howe, 106 Ill. 573; Lake Shore & M. S. R. Co. v. O'Conner, 115 Ill. 261; Chicago & A. R. Co. v. Adler, 129 Ill. 339; People v. People's Ins. Exchange, 126 Ill. 468, 2 L. R. A. 340; Randall v. Baltimore & O. R. Co. 109 U. S. 478, 27 L. ed. 1003; Illinois C. R. Co. v. Thompson, 116 Ill. 159; Collar v. Patterson, 137 Ill. 403; Illinois C. R. Co. v. Nowicki, 148 Ill. 29; Phil-1 o'clock, on the 29th of January, 1896. He lips v. Dickerson, 85 Ill. 11, 28 Am. Rep. 607; Reed v. Deerfield, 8 Allen, 524; Simmons v. Chicago & T. R. Co. 110 Ill. 340; Chicago & A. R. Co. v. Becker, 76 Ill. 25. Messrs. Moran, Kraus, & Mayer, for appellee: The mere fact of riding on a platform of a street car is not conclusive proof of negligence. North Chicago Street R. Co. v. Williams, 140 Ill. 275; Meesel v. Lynn & B. R. Co. 8 Allen, 234; Briggs v. Union Street R. Co. 148 Mass. 72; Lake Shore & M. S. R. Co. v. Brown, 123 Ill. 162; Chicago & A. R. Co. v. Fisher, 38 Ill. App. 38; West Chicago Street R. Co. v. McNulty, 64 Ill. App. 549; West Chicago Street R. Co. v. Dudzik, 67 Ill. App. 681; Upham v. Detroit City R. Co. 85 Mich. 12, 12 L. R. A. 129; Nolan v. Brooklyn City N. R. Co. 87 N. Y. 63, 41 Am. Rep. 345; Muldoon v. Seattle City R. Co. 7 Wash. 528, 22 L. R. A. 794; Terre Haute Electric R. Co. v. Lauer, 21 Ind. App. 466; Beal v. Lowell & D. Street R. Co. 157 Mass. 444; Springfield Consol. R. Co. v. Hoeffner, 175 Ill. 634; Maguire v. Middlesex R. Co. 115 Mass. 239; Burns v. Bellefontaine R. Co. 50 Mo. 139; Matz v. St. Paul City R. Co. 52 Minn. 159; Ginna v. Second Ave. R. Co. 67 N. Y. 596; Fleck v. Union R. Co. 134 Mass. 480; Pray v. Omaha Street R. Co. 44 Neb. 167; Germantown Pass. R. Co. v. Walling, 97 Pa. 55, 39 Am. Rep. 796; Geitz v. Milwaukee City R. Co. 72 Wis. 307; City R. Co. v. Lee, 50 N. J. L. 438. procured a paper, and took a seat in the car, and remained seated, reading his paper, until he reached North avenue and Eugenie street, within a block of his home, when he stepped out on the rear platform of the car for the purpose of alighting. While standing on the platform, with his back against the dashboard, the car gave a sudden jerk, throwing him over the dashboard and upon the street. Witnesses on the car testified that the jerk was so violent that passengers were thrown off their seats. It does not appear from the evidence that there was any regulation of the railway company prohibiting passengers from riding on the platform, but, on the other hand, it appears that other passengers did ride on the platform without objection on the part of those in charge of the car. Was the fact, therefore, that plaintiff was standing on the platform when injured such negligence as would preclude a recovery? We think not. Whether the plaintiff's standing on the platform was negligence was a question of fact for the jury to determine from all the facts and circumstances surrounding the transaction. In North Chicago Street R. Co. v. Williams, 140 Ill. 275, it was held that whether a person, in getting upon a street car while it is in motion, is chargeable with want of ordinary care, is a question of fact for the determination of the jury under all the circumstances of the case. In the decision of the case, McDonough v. Metropolitan R. Co. 137 Mass. 210, and Briggs v. Union Street |