peremptory instruction in behalf of the company was renewed, and again overruled. The court thereupon gave its charge, to which the company filed numerous exceptions, and also submitted - written requests, forty-two in number, for instruction to the jury. The court refused to instruct the jury as asked, or otherwise than as shown in its own charge. To the action of the court in the several respects indicated, the company excepted in due form. The jury returned a verdict against the company for the sum of $10,000, although the evidence, in some of its aspects, placed the value of the 'missing laces very far in excess of that amount.

It would extend this opinion to an improper length, and could serve no useful purpose, were we to enter upon a discussion of the various exceptions, unusual in their number, to the action of the court in the admission and exclusion of evidence, as well as in refusing to charge the jury as requested by the company. Certain controlling propositions are presented for our consideration, and upon their determination the substantial rights of parties seem to depend. If, in respect of these propositions, no error was committed, the judgment should be affirmed without any reference to points of a minor and merely technical nature, which do not involve the merits of the case or the just rights of parties.

In behalf of the company it is earnestly claimed that the court erred in not giving a peremptory* instruction for a verdict in its behalf. This position, however, is wholly untenable. Had there been no serious controversy about the facts, and had the law upon the undisputed evidence precluded any recovery whatever against the company, such an instruction would have been proper. 1 Wall. 369; 11 How. 372; 19 How. 269; 22 Wall. 121. The court could not have given such an instruction in this case without usurping the functions of the jury. This will, however, more clearly appear from what is said in the course of this opinion.

The main contention of the company, upon the trial below, was that good faith required the defendant in error, when delivering her trunks for transportation. to inform its agents of the peculiar character and extraordinary value of the laces in question; and that her failure, in that respect, whether intentional or not, was in itself a fraud upon the carrier which prevented any recovery in this action.

The circuit court refused, and, in our opinion, rightly, to so instruct the jury. We are not referred to any legislative enactment restricting or limiting the responsibility of passenger carriers, by land, for articles carried as baggage. Nor is it pretended that the plaintiff in error had, at the date of these transactions, established or promulgated any regulation as to the quantity or value of baggage which passengers upon its cars might carry, without extra compensation, under the general contract to carry the person. Further, it is not claimed that any inquiry was made of the defendant in error, either when the trunks were taken into the custody of the carrier, or at any

time prior to the alleged loss, as to the quantity or value of their contents. It is undoubtedly competent for a carrier of passengers, by specific regulations, distinctly brought to the knowledge of the passenger, which are reasonable in their character and not inconsistent with any statute or its duties to the public, to protect itself against liability, as insurer, for baggage exceeding a fixed amount in value, except upon additional compensation, proportioned to the risk. And in order that such regulations may be practically effective, and the carrier advised of the full extent of its responsibility, and, consequently, of the degree of precaution necessary upon its part, it may rightfully require, as a condition precedent to any contract for the transporation of baggage, information from the passenger as to its value; and if the value thus disclosed exceeds that which the passenger may reasonably demand to be transported as baggage without extra compensation, the carrier, at its option, can make such additional charge as the risk fairly justifies. It is also undoubtedly true that the carrier may be discharged from liability for the full value of the passenger's baggage, if the latter by false statements, or by any device or artifice, puts off inquiry as to such value, whereby is imposed upon the carrier responsibility beyond what it was bound to assume in consideration of the ordinary fare charged for the transportation of the person. But in the absence of legislation limiting the responsibility of carriers for the baggage of passengers-in the absence of reasonable regulations upon the subject by the carrier, of which the passenger has knowledge—in the absence of inquiry of the passenger as to the value of the articles carried, under the name of baggage. for his personal use and convenience when traveling-and in the absence of conduct upon the part of the passenger misleading the carrier as to the value of his baggage, the court cannot, as mere matter of law, declare, as it was in effect requested in this case to do, that the mere failure of the passenger, unasked, to disclose the value of his baggage, is a fraud upon the carrier, which defeats all right of recovery. The instructions asked by the company virtually assumed that the general law governing the rights, duties and responsibilities of passenger carriers, prescribed a definite, fixed limit of value, beyond which the carrier was not liable for baggage, except under a special contract or upon previous notice as to value. We are not, however, referred to any adjudged case, or to any elementary treatise which sustains that proposition, without qualification. In the very nature of things no such rule could be established by the courts in virtue of any inherent power they possess. The quantity or kind or value of the baggage which a passenger may carry under the contract for the transportation of his person depends upon a variety of circumstances which do not exist in every case. That which one traveler," says Erle, C. J., in Philpot v. Northwestern R. Co., 19 C. B. (N. S.), 321, “would consider indispensable would be deemed superfluous and unnecessary by another. But the general habits and wants of mankind will be taken in the mind of the

carrier when he receives a passenger for conveyance. Some of the cases seem to announce the broad doctrine that, by general law, in the absence of legislation, or special regulations by the carrier of the character indicated, a passenger may take, without extra compensation, such articles adapted to personal use as his necessities, comfort, convenience, or even gratification may suggest; and that, whatever may be the quantity or value of such articles, the carrier is responsible for all damages or loss to them from whatever source, unless from the act of God or the public enemy. But that, in our judgment, is not an accurate statement of the law. Whether articles of wearing apparel, in any particular case, constitute baggage, as that term is understood in the law, for which the carrier is responsible as insurer, depends upon the inquiry whether they are such in quantity and value as passengers under like circumstances ordinarily or usually carry for personal use when traveling. "The implied undertaking," says Mr. Angell, "of the proprietors of stage coaches, railroads and steamboats, to carry in safety the baggage of passengers, is not unlimited and can not be extended beyond ordinary baggage, or such baggage as a traveler usually carries with him for his personal convenience." Angell on Carriers. § 115. In Hannibal Railroad v. Swift, 12 Wall. 275, this court, speaking through Mr. Justice Field, said that the contract to carry the person "only implies an undertaking to transport such a limited quantity of articles as are ordinarily taken by travelers for their personal use and convenience, such quantity depending of course, upon the station of the party, the object and length of his journea, and many other considerations." To the same effect is a decision of the Queen's Bench in Macrow v. Great Western R. Co., L. R., 6 Q. B. 121, where Chief Justice Cockburn announced the true rule to be "that whatever the passenger takes with him for his personal use or convenience according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities, or to the ultimate purpose of the journey, must be considered as personal luggage." 2 Parsons on Cont.. 199. To the extent, therefore, that the articles carried by the passenger for his personal use, exceed in quantity and value such as are ordinarily or usually carried by passengers of like station and pursuing like journeys, they are not baggage for which the carrier, by general law, is responsible as insurer. In cases of abuse by the passenger of the privileges which the law gives him, the carrier secures such exemption from responsibility, not however, because the passenger, uninquired of, failed to disclose the character and value of the articles carried, but because the articles being themselves in excess of the amount usually or ordinarily carried under like circumstances, would not constitute baggage within the true meaning of the law. The laces in question confessedly constituted a part of the wearing apparel of the defendant in error. They were adapted to, and exclusively designed for, personal use, according to her convenience, comfert or taste, during the extended journey upon which she had entered. They were not merchan

dise nor is there any evidence that they were intended for sale or for purposes of business. Whether they were such articles in quantity and value as passengers of like station and under like circumstances ordinarily or usually carry for their personal use, and to subserve their convenience, gratification, or comfort while traveling, was not a pure question of law for the sole or final determination of the court, but a question of fact for the jury, under proper guidance from the court as to the law governing such cases. It was for the jury to say to what extent, if any, the baggage of defendant in error exceeded in quantity and value that which was usually carried without extra compensation, and to disallow any claim for such ex

cess.

Upon examining the carefully guarded instructions given to the jury, we are unable to see that the court below omitted anything essential to a clear comprehension of the issues, or announced any principle or doctrine not in harmony with settled law. After submitting to the jury the disputed question as to whether the laces were, in fact, in the trunk of the defendant in error when delivered to the company in Albany for transportation to Niagara Falls, the court charged the jury in substance, that every traveler was entitled to provide for the exigencies of his journey in the way of baggage; was not limited to articles which were absolutely essential, but could carry such as were usually carried by persons traveling for their comfort, convenience and gratification upon such journeys; that the liability of carriers could not be maintained to the extent of making them responsible for such unusual articles as the exceptional fancies, habits, or idiosyncracies of some particular individual may prompt him to carry; that their responsibility, as insurers, was limited to such articles as it was customary or reasonable for travelers of the same class in general to take for such journeys as the one which was the subject of inquiry, and did not extend to those which the caprice of a particular traveler might lead that traveler to take; that if the company delivered to the defendant in error, aside from the laces in question, baggage which had been carried, and which was suffleient for her as reasonable baggage within the rules laid down, she was not entitled to recover; that if she carried the laces in question for the purpose of having them safely kept and stored by railroad companies and hotel keepers, and not for the purpose of using them as occasion might require for her gratification, comfort or convenience, the company was not liable; that if any portion of the missing articles was reasonable and proper for her to carry, and all was not, they should allow her the value of that portion.

Looking at the whole scope and bearing of the charge, and interpreting what was said as it must necessarily have been understood both by the court and jury, we do not perceive that any error was committed to the prejudice of the company. or of which it can complain. No error of law appearing upon the record, this court can not reverse the judgment, because, upon examination of the evidence, we may be of the opinion that the

jury should have returned a verdict for a less amount. If the jury acted upon a gross mistake of facts, or were governed by some improper influence or bias, the remedy therefor rested with the court below under its general power to set aside the verdict. But that court finding that the verdict was abundantly sustained by the evidence, and that there was no ground to suppose that the jury had not performed their duty impartially and justly, refused to disturb the verdict, and overruled a motion for a new trial. Whether its action, in that particular was erroneous or not, our power is restricted by the Constitution to the determination of the questions of law arising upon the record. Our authority does not extend to a re-examination of facts which have been tried by the jury under instructions correctly defining the legal rights of parties. Parsons v. Bedford, 3 Pet. 446; 21 How. 167; Ins. Co. v. Folsom, 18 Wall. 249.

*

*

It is perhaps, proper to refer to one other point suggested in the elaborate brief of counsel for the company. Our attention is called to section 4, 281 of the Revised Statutes, which declares that "if any shipper of platina, gold, gold dust, coins, jewelery, trinklets, * silk in a manufactured or unmanufactured form, whether wrought up or not wrought up with any other material, furs or laces, or any of them, contained in any parcel, package, or bundle, shall lade the same as freight or baggage on any vessel, without at the time of such lading, giving to the master, clerk, agent, or owner of such vessel receiving the same a written notice of the true character and value thereof and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form or manner; nor shall any such master or owner be liable for any such goods beyond the value and according to the character thereof, so notified and entered."

It is sufficient to say that that section has no application whatever to this case. It has reference alone to the liability of carries by water who transport goods and merchandise of the kind designated. It has no reference to carriers by land, and does not assume to declare or restrict their liability for the baggage of passengers. The judgment is affirmed.

Mr. Justice FIELD:

I dissent from the judgment of the court in this case. I do not think that two hundred and seventy five yards of lace, claimed by the owner to be worth seventy-five thousand dollars, and found by the jury to be of the value of ten thousand dollars, can, as a matter of law, be properly considered as baggage of a passenger, for the loss of which the railroad company, in the absence of any special agreement, should be held liable; and I am authorized to state that Mr. Justice MILLER and Mr. Justice STRONG concur in this view.

SOME RECENT FOREIGN DECISIONS.

EVIDENCE-LEGITIMACY.-The will of the father or reputed father of a person whose legitimacy is in dispute, is admissible evidence to disprove the legitimacy. Murray v. Milner. English High Court, Chy. Div. 27 W. R. 881.

DAMAGES-ACTION FOR FRAUDULENTLY INDUCINGPLAINTIFF TO PURCHASE CERTAIN CHATTELS-MEASURE OF DAMAGES.-The defendant, by means of falserepresentations, induced L to buy certain quantities of India rupee paper, which subsequently became depreciated in value, owing to a fall in silver, and were sold by L at a large loss some five months after the purchase. L, after the sale, discovered the defendant's fraud. In an action by L's trustee in liquidation to recover, as damages, the full loss sustained: Held, per BAGGALLAY and THESIGER, L.JJ., diss. BRAMWELL, L.J., that the measure of damages was the difference between the price paid and the price which could have been obtained by the purchaser if he had re-sold the rupee paper on the same day as that on which he purchased it. Per BRAMWELL, L.J.: The measures of damages was the difference between the price paid for the rupee paper and the price at which it could have been sold by the purchaser in reasonable quantities and with due caution within a rea-sonable time of the purchase.-Waddell v. Blockey. English Court of Appeal., 27 W. R. 931.

PLEDGE-SPECIAL CONTRACT DELIVERY UP OF PLEDGE BY PLEDGEE ON TERMS OF CONTRACT— · FRAUD OF PLEDGOR SUBSEQUENT BONA FIDE TRANSFEREE FOR VALUE TWO INNOCENT PARTIES.-1. D and Sons deposited flour with the plaintiffs as security for money lent upon acceptances, and ́ gave a memorandum to them in these terms: "As se-curity for the due fulfilment on our part of this un-dertaking we have warehoused in your name sundry lots of flour, and, in consideration of your delivering to us or to our order said flour as sold, we further undertake to specifically pay you proceeds of all sales thereof immediately on their receipt.'' The defendants, in ignorance that the flour was deposited with the plaintiffs. agreed to advance £2,500 on it as secu-rity, on condition that they should have absolute possession of it with power to sell it. In order to give the flour into the possession of the defendants, one of the firm of D & Sons fraudulently represented to the plaintiffs that the flour was sold to the defendants, and the plaintiffs believing that representation gave a delivery order to D & Sons. The defendants had on the same day, but previously to D & Sons receiving the deliv-. ery order, in pursuance of their ageeement, paid to D & Sons part of the £2,500, and they paid the remainder the next day. Subsequently the plaintiffs caused the room in which the flour was doposited to be transferred to the defendants. The defendants, acting under their powerof sale, sold the flour and received the purchase-money. The plaintiffs sued them for the wrongful conversion of the flour. Held, that the plaintiffs having delivered up the flour under the special contract, the special property of the plaintiffs in it was at an end, and although the surrender might, as between the pledgors and the pledgees, have been revoked, yet the goods having before any such revocation been transferred by the owners for good consideration to the defendants, bona fide transferees, they acquired an indefeasible title. 2. Where one of two innocent parties must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud.-Babcock v. Lawson. English High Court, Q. B. Div., 27 W. R. 886.

ABSTRACTS OF RECENT DECISIONS.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

October, 1879.

FIRE INSURANCE-ILLEGAL BUSINESS.-In an action upon a policy insuring the plaintiff's billiard tables, balls and cues, bar and saloon fixtures, furniture and pictures, and stock in trade, chiefly liquors and cigers, including glass and other ware, in Franklin Hall, it appeared that a license in due form, under statutes of 1875, ch. 99, had previously been issued to J, one of the plaintiffs, "doing business at Franklin Hall, to sell, expose or keep for sale until May 1, 1876, spirituous or intoxicating liquors to be drank on the premises." No other license had been granted, nor had either of the plaintiffs any license to keep a billiard table for hire, gain or reward under Gen. Stats., ch. 88, § 69. It was admitted that said billlard tables were kept by the plaintiffs for that purpose. Held, that the keeping of the billiard tables for hire and of the liquors for sale being carried on as one business, and the policy being illegal as to the former at least, the whole contract was void. Opinion by GRAY, C. J. Johnson v. Union M. & F. Ins. Co.

PARTIES.

PROMISSORY NOTE-PAYEES 1. An instrument in the form of a promissory note whereby the maker promises to pay "the trustees of the Methodist Episcopal church or their collector,'' is properly described as such, and does not come within the class of cases in which instruments otherwise such in form are held not to be such, because made payable in the alternative to either of two persons named. Osgood v. Pearson, 4 Gray, 455. The rule applies where two persons are strangers to each other, but not when the instrument discloses the fact that one of the two persons named is agent for the other to receive the money. Holmes v. Jacques, L. R. 1 Q. B. 375. In the case at bar, it is evident that " their collector' is merely a person authorized by the payee to receive the money in its behalf. 2. A suit on such note can not be maintained by two only of the board of trustees who have been appointed a collection committee authorized by the board to collect said note by suit or otherwise. Wiggin v. Cummings, 8 Allen, 353. Opinion by SOULE, J.-Noxon v. Smith.

FALSE IMPRISONMENT LIABILITY OF MAGISTRATE-EXCESSIVE SENTENCE.--On the trial of an action of tort for false imprisonment it appeared that that the plaintiff had been brought before the defendant, a trial justice, on two complaints. One charged him with keeping a disorderly house. Upon this he was found guilty and sentenced to confinement in the house of correction for the term of twelve months. The other was for illegally selling intoxicating liquors, and upon this he was found guilty and sentenced to pay fine and costs, and to stand committed until the sentence was performed. The plaintiff did not pay the fine and costs. The defendant thereupon issued two warrants of commitment, and delivered them to a deputy sheriff, who committed the plaintiff to the house of correction, delivering the warrants to the master thereof, who held the plaintiff in his custody under both of said warrants during the whole term of his imprisonment. The proceedings upon both complaints were regular, except that the power of a trial justice extends only to an imprisonment for a term not exceeding six months. The magistrate had jurisdiction of the subject-matter of the complaints and of the

person. The court directed the jury to return a verdiet for the plaintiff, and required them to find: 1st. What damage the plaintiff had sustained by his imprisonment under the warrant for his imprisonment for twelve months, if he was rightfully retained during the whole time under another warrant? 2d. What damages the plaintiff had sustained if his imprisonment was wholly illegal? The jury found, in answer to the first question, the sum of one dollar; in answer to the second question, the sum of one hundred and twenty-five dollars. The question as to which amount the plaintiff was entitled to recover was submitted to the determination of the court. Held, that the defendant, if Ilable at all, was liable only for nominal damages. Opinion by MORTON, J.-Doherty v. Mun

son.

SUPREME COURT OF INDIANA.

October, 1879.

JUDGMENT PLEADING UNNECESSARY AVERMENTS.-In pleading a judgment it is not necessary to allege, in addition to the averment of its recovery, that it still remains in full force, or has not been set aside, vacated or reversed. Although it is quite usual to aver that the judgment is in full force, unreversed and unappealed from, such averments are needless. If the judgment has ceased from any cause to be of binding force, or if its operation has been suspended to any extent, these are matters of defense. Affirmed.-Green v. Rafles.

PRAC

PLEADING ARGUMENTATIVE DENIAL TICE.- This was a suit against appellants to recover from them personally as stockholders in a certain corporation. The second and third paragraphs of defendant's answer alleged that the debt in question was one contracted before the defendants became members of the corporation, and it is insisted that because of these allegations the demurrer to these paragraphs should have been overruled. Held, that these allegations were but an argumentative denial of what the plaintiff was bound to prove under the general denial which was filed, viz.: that the defendants were members of the company at the time the debt was contracted. The matter thus pleaded could have been given in evidence under the general denial, and, therefore, it was not fatally erroneous to sustain the demurrer. The withdrawal of the general denial afterwards could not make a ruling erroneous which was not so at the time it was made. Affirmed.-Reeder v. Moranda. CONVEYANCE BY HUSBAND TO WIFE FRAUD CONSIDERATION.-Action by appellants to set aside as fraudulent a conveyance made by Loehr to his wife. On the trial the court instructed the jury that a husband may convey his property to his wife without consideration, and for the purpose of defrauding his creditors, and that the wife will hold such property under any and all circumstances, if she had not knowledge at the time of the fraudulent purpose of her husband. Held, that the instruction did not state the law. A conveyance of land to an intended wife in consideration of marriage is upon a valuable consideration. 56 Ind. 538. But a mere voluntary conveyance of property by a husband to his wife after marriage, not in fulfillment of a contract made before marriage, is not upon a valuable consideration, and such conveyance will not be upheld if fraudulent as to creditors. But to avoid it, it must be shown that the husband had not sufficient property subject to execution left to pay bis

debts. 56 Ind. 34; 57 Ind. 374; 60 Ind. 555. Reversed.-Mc Cole v. Loehr.

STATUTE OF FRAUDS-INSUFFICENT MEMORANDUM -REFORMATION OF.-Action by appellees against appellants upon an open account. Appellants answered that they had purchased certain goods of appellees, through the agent of the latter, on a credit of sixty days; that a memorandum of the purchase had been executed in the following form: Terra Haute, Ind., 187-. A. P. Lee & Bro." [Then follows a list of the goods.] "Freight. Ship Emp. Line, 60 days aceptance. Signed Hills Bros. per E. F. Lock, April 21, 1875;" that by mistake the word sold was omitted from before the firm name of appellants, and praying for a reformation of the memorandum in this respect, and asking a set-off for damages for appellees' failure to ship the goods. A demurrer was sustained to the answer. Held, that a memorandum, to be sufficient within the statute of frauds, must state the contract with such reasonable certainty that its terms may be understood from the writing itself without recourse to parol proof. 50 Ind. 145; 39 Ind. 90. And the alleged mistake can not be reformed as asked by appellants. Parol evidence could not be received to supply the omitted fact in the memorandum. Affirmed.-Lee v. Hills.

SUPREME COURT OF WISCONSIN.

October, 1879.

AUTHORITY OF COUNCIL TO BUILD AND MAINTAIN PIER-DELEGATION.-Complaint that by certain acts of the legislature the defendant city was authorized to construct a pier into Green Bay and a road thereto from the city limits, and to keep the road in good repair, and the mayor and common council of said city were empowered to fix, regulate and collect tolls upon said pier; that the city having constructed such pier and road, the common council leased the pier to plaintiff for one year, for a specified sum; that by said lease plaintiff acquired the valuable privilege of charging commissions for all merchandise and freight land. ed at or shipped from said pier, which amounted to a specified sum for the year previoust o the action; and that, by reason of defendant's neglect to maintain said road in good sepair, plaintiff had suffered damage by loss of tolls or commissions for the use of said pier, in a sum named. Held, on demurrer, 1. That as there is no averment that the mayor and common council, or the plaintiff under his lease, had ever fixed and regulated the tolls upon the pier no damage is shown; 2. That the power of the common council to regulate the tolls could not be delegated and the lease was void. Opinion by ORTON, J.-Lord v. City of Oconto.

PARTNERSHIP EVIDENCE OF.-1. A chattel mortgage in the usual form from A to B, is not evidence tending to show the existence of a partnership between them at its date. 2. In an action to charge two persons as partners, if plaintiff shows that a partnership existed between them at a certain time, and was known to the public at the place of business of the firm, and that no notice of dissolution was ever given, he may further show that at the time of the transaction in question such partnership was generally reputed to continue, and that the debt was contracted in the firm name and upon the credit of the firm though after a dissolution in fact, it being then for the jury to determine whether the retiring partner had so acted after the dissolution as to hold himself out as still a

NEGOTIABLE PAPER-COMPROMISE OF CLAIM TRANSFER TO BONA FIDE HOLDER-PRACTICE. 1. In an action upon two promissory notes, by a second indorsee, after the notes, duly indorsed, had been put in evidence, the evidence for defendant was, that after one of the notes fell due, and before maturity of the other, the payees attended a meeting of the maker's creditors to consider the question of a compromise, and stated the amount of their claim, including the notes in question; that several days afterwards a compromise in writing was signed by said payees and other creditors, by which they agreed to take forty per cent. in discharge of their claims, in case all the creditors should sign the agreement; but said payees did not at that time state the amount of their claims. One of the payees then testified for plaintiff that they sold and delivered the notes to the first indorsee one or two days before the date of the written compromise, for about seventy per cent. of their face. There was no evidence that such payees had agreed with the other creditors, or with defendant, to sign the compromise before they actually signed it. Held, (1) That independently of the evidence, the presumption was that the notes were negotiated before due. (2) That the compromise sigued by the payees after negotiating the notes did not affect the rights of the purchaser or his indorsee. (3) That subsequent declarations of the payees that they held the notes at the time of signing the compromise would not be admissible in evidence against plaintiff. (4) That the failure of the payees to disclose the fact that they had negotiated said notes, at the time of signing the compromise. did not throw upon plaintiff the burden of showing that he purchased in good faith and for value; such notes being valid against defendant for their full amount even in the hands of the payees, at the date of their negotiation. (5) That an oral agreement by the payees, before the negotiation of the notes, to sign the compromise of their entire claiin, including such note, if made, and if binding in law, would not have defeated plaintiff's right to recover the whole amount of the note negotiated before maturity, without knowledge on his part of such agreement; nor would it have thrown upon him the burden of proving the absence of such knowledge. (6) That upon the evidence plaintiff was entitled to recover the full amount of both notes. 2. When a motion for a new trial has been granted, the moving party may waive his right under the order, without prejudice to his right to appeal from the judgment afterwards entered. Opinion by TAYLOR, J.—Gutwillig v. Stumes.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, October, 1879.1

REHEARING POINTS NOT MADE IN ORIGINAL ARGUMENT OF CASE NOT ALLOWED ON PETITION FOR REHEARING.-This case was before the Supreme Court at a former term, The judgment was reversed and the cause remanded, on the ground that the circuit court had improperly sustained a demurrer to the second plea. In the original argument of appellee the only objection taken to the plea was that the pleader had failed to state specifically the facts relied