assessment roll shall not be counted as the tes- Appeal from Cook county court, O. N. Carter, Judge. Application by the village of River Forest for the confirmation of a special assessment against the Chicago & Northwestern Railroad Company. From a judgment sustaining objections filed by the company, the village appeals. Affirmed. F. J. Griffen, for appellant. A. W. Pulver (Lloyd W. Bowers and Samuel A. Lynde, of counsel), for appellee. WILKIN, J. Appellant prosecutes this appeal from a judgment of the county court of Cook county sustaining objections to a special assessment made by the village of River Forest on certain property of the appellee railway company for the improvement of Thatcher and Hawthorne avenues, in said village. The land was assessed $389.40. On the application of the village for a confirmation of the assessment appellee appeared, and filed numerous objections, all of which were overruled except two, as follows: "(65) Said assessment upon the property of said objector exceeds the benefits which will accrue to the said property from the proposed improvement." "(84) Said property is not benefited by said proposed improvement." Hawthorne avenue extends east and west through the village, and is immediately south of appellee's railroad tracks. Thatcher avenue extends from the north across the right of way and tracks of the railroad company to Hawthorne, and then runs south from a point further west on said Hawthorne avenue. The property assessed is adjacent to and west of Thatcher avenue and immediately north of Hawthorne. It is 100 feet wide north and south, and about 185 feet long east and west. It is inclosed as right of way by a fence. The depot is east of Thatcher avenue, on the north side of the railroad tracks. The platforms are 500 feet long on the north side and about 300 feet long on the south side, both being east of Thatcher avenue. James S. Robinson, a civil engineer employed by the railroad company, testified that the property in question was used simply as right of way for the two tracks of the company, and had no connection whatever with the depot or depot grounds, and he described the location as above stated. He testified that there were no railroad structures on the property, and that it was devoted to no other use than that of right of way, and that the property would in no way be benefited by the proposed improvement of Hawthorne and Thatcher avenues. The village relied upon the assessment roll, with the certificate and affidavit of the commissioner who made the assessment, and the testimony of one F. C. Smith. Smith testified in chief: "I reside at River Forest. I am in the real estate busimess, and have been for twenty years. I am acquainted with the value of real estate in River Forest in the vicinity of Hawthorne and Thatcher avenues. I have bought and sold considerable real estate, and have observed the effect of local improvements, such as contemplated, upon the value of real estate, -the general effect upon values. It makes it more valuable. You have to pay more for property on improved streets, always. I am acquainted with the property of the objector, assessed $389.40. In my opinion, that property is increased in value to the amount of the assessment." From his cross-examination it appears that his opinion as to the benefits which the property will derive from the improvement is based upon the supposition or conjecture that it will be in the future needed for depot or freight house purposes, not upon its present condition and uses. In Illinois Cent. R. Co. v. City of Chicago, 141 Ill. 509, 30 N. E. 1036, speaking of a special assessment, we said (page 515, 141 Ill., and page 1037, 30 N. E.): "In a proceeding to condemn lands, as a general rule, the owner is entitled to recover the fair market value of the lands taken; and in a proceeding by special assessment, as a general rule, the inquiry is to what extent the market value of the premises has been increased by the improvement. If, therefore, in the former case, where the owner is restricted to a particular use, the measure of compensation will be its value for the special use to which he is restricted, upon the same principle it must follow, in a special assessment proceeding, where land is restricted by statute to a particular use, and cannot be applied to any other, the true measure of benefit which an improvement will confer on the land is its increased value for the special use to which it may, by statute, be restricted. In a proceeding by special assessment, in no case can the assessment exceed the benefit which will be conferred on the property by the construction of the improvement. The benefit must be a real, actual benefit, not one resting in conjecture." In Chicago, B. & Q. R. Co. v. City of Chicago, 149 Ill. 457, 37 N. E. 78, in a condemnation proceeding, we again said (page 462, 149 Ill., and page 79, 37 N. E.): "In such a proceeding as this 'nothing should be allowed for imaginary or speculative damages, or such remote or inappreciable damages as the imagination may conjure up and which may or may not occur in the future.' Jones v. Railroad Co., 68 Ill. 380; Peoria & P. Union Ry. Co. v. Peoria & F. R. Co., 105 Ill. 110. Possible or imaginary uses are to be excluded. Nor can the owner show the probable future use of the property. Pierce, R. R. 217; Lewis, Em. Dom. § 480." See, also, Chicago & N. W. Ry. Co. v. Town of Cicero, 157 Ill. 48, 4} N. E. 640; Illinois Cent. R. Co. v. Village of Lostant, 167 Ill. 85, 47 N. E. 62. In Illinois Cent. R. Co. v. City of Chicago, 169 Ill. 329, 48 N. E. 492, we said (page 338, 169 Ill., and page 494, 48 N. E.): "The present, and not the probable future, use of the land, or the in tention of the owner as to such use, is the test of market value to be shown by the evidence." The question, then, here must be, in the absence of proof tending to show that the property in question is devoted to other than right of way purposes, or is about to be so devoted, will it, for the purposes of right of way for the two tracks of appellee, be benefited by the improvement of the street upon which it borders? It must be borne in mind that a railroad right of way cannot be put upon the market by a railroad company for general business purposes, as can private property. Circumstances may arise under which a railroad right of way can be said to be benefited by a local improvement, but, as a general rule, it cannot be. Chicago, M. & St. P. Ry. Co. v. City of Milwaukee, 89 Wis. 506, 62 N. W. 417, 28 L. R. A. 249, and cases cited. Here, however, the question whether or not this right of way will be benefited is purely one of fact, and, unless we can say that the conclusion of the trial court (sitting as a jury) is so manifestly contrary to the weight of the evidence as to indicate a mistaken or prejudiced view of the testimony, we cannot interfere. So far from the weight of the evidence being against his judgment, it clearly preponderates in favor of it, when considered in the light of the foregoing rule for estimating benefits. It is true that the assessment roll, together with the certificate and affidavit of the commissioner, makes a prima facie case for the petitioner; but the present statute contains the peculiar qualification that "it shall not be counted as the testimony of any witness or witnesses in the case." Hurd's Rev. St. 1901, c. 24, par. 55. The statute, notwithstanding that provision, we think, casts the burden upon the objector to overcome the prima facie case so made; but here, in view of the undisputed testimony of the objector's witness as to the present and future use of the property in question, his testimony is reasonable, while that of the witness Smith has no proper application to the case. Cases cited by counsel for the appellant holding that depot grounds may be assessed for street improvements have no application to the facts in this case. Also cases to the effect that lands near a depot, used for the purpose of loading and unloading cars (as Chicago & N. W. Ry. Co. v. Village of Elmhurst, 165 Ill. 148, 46 N. E. 437), may be specially taxed, are not here in point. Nor can the decisions of this court holding that a railway contiguous to a proposed street improvement may be specially taxed therefor have any controlling influence in the decision of this case, for the reason that at the time those decisions were rendered the question of benefits in special taxation was conclusively determined by the passage of the ordinance for the improvement by the municipality. It is said by counsel for appellant that the court overruled certain objections, by which it in effect held that the property was liable to assessment, and properly assessed, the ar (Supreme Court of Illinois. June 19, 1902.) PARTNERSHIP - DISSOLUTION — PAYMENT OF FIRM DEBTS-FIRM PROPERTY-SALE BY REMAINING PARTNER- REPLEVIN — - INSTRUCTIONS. 1. One of two partners in the saloon business, being indebted to the firm, sold his interest to the barkeeper, who agreed to assume the retiring partner's liabilities to the firm. The other partner refused to recognize the barkeeper as a partner unless he paid this liability, and on his failure to do so the remaining partner took possession of the property as owner, selling it with the bartender's consent, and applying the money to the satisfaction of executions on firm debts. under which the property was about to be seized. Held, that the remaining partner had a right to treat the sale of his partner's interest as a dissolution of the firm, giving him power to sell to pay the firm debts and give good title to the buyer as against one claiming through the retiring partner. 2. Evidence of such facts was sufficient to raise an issue as to whether the bartender and those claiming through him were not estopped to question the title of the person who purchased from the remaining partner. 3. In replevin for a saloon stock and bar fixtures by a purchaser from one in possession, and whose title was disputed, an instruction that the purchaser acquired a good title if the jury found certain facts to be true, including, among others, that the seller was operating the saloon as owner, was not objectionable as leading the jury to hold the sale good upon the single isolated finding that the saloon was being operated by the seller as owner. Appeal from appellate court, First district. Action by John Dawson against James Pease. From a judgment of the appellate court (97 Ill. App. 620) affirming a judgment for plaintiff, defendant appeals. Affirmed. Daniel McCaskill, for appellant. Bulkley, Gray & More, for appellee. BOGGS, J. This was replevin in the circuit court of Cook county by the appellee against the appellant to recover a stock of liquors, cigars, and certain saloon fixtures. Among other pleas the appellant pleaded that in his official capacity as sheriff of said Cook county he held an execution in favor of one Patrick H. Early and against John Early and Algernon S. Osgood; that the stock of liquors and the saloon fixtures specified in the replevin writ were not the property of the plaintiff in replevin, but were the property of the defendants in the said execution; and that he levied upon and took possession of the same for the purpose of obtaining satisfaction of the execution. The appellee replied, averring that he, and not the said defendants in the execution, was the owner of the chattels in controversy. Upon the verdict of the jury to whom the issues were submitted, judgment was entered in favor of the plaintiff in replevin, the appellee in this court. The appellate court for the First district affirmed the judgment. This appeal asks reversal of the judgment of affirmance on three grounds: First, that the trial court erred in refusing to grant the motion, entered by the appellant at the close of all the evidence, to direct a verdict in his favor; second, that the court erred in giving instructions Nos. 1, 2, and 3 in behalf of the appellee; third, in refusing instructions 3, 4, 5, 6, and 7 asked in behalf of appellant. The tendencies of the proof were such that it was proper to submit the case to the jury. The appellee claimed title to the chattels in controversy by purchase from Algernon S. Osgood. Osgood and one John Early, brother of the plaintiff in the execution, in 1888 engaged, as copartners, in the saloon business at 193 Lasalle street, in the city of Chicago. In the spring of 1895 John Early, one of the partners, executed a bill of sale for his interest in the partnership property to E. A. Dreifuss, who was then, and for some time previous had been, the barkeeper for the firm. The only consideration paid by Dreifuss was his undertaking to assume and become liable for the "liabilities of John Early in the firm of Early & Osgood." Osgood contended that Early was indebted to the firm in the sum of $3,200, and testified he refused to recognize Dreifuss as a partner unless he paid this liability of Early to the firm; that Dreifuss did not pay this amount, or any other sum, upon any liability of the firm; that Dreifuss said he would go to Louisville, and raise the money, and, if he did not get the money, he would continue to work at $25 per week; that Dreifuss failed to raise the money, and continued to serve as barkeeper at the salary stated; that he (Osgood) took charge of the business, and continued to manage it under the name and style of A. S. Osgood & Co., though there was no person represented by the word "Co." in the firm name; that he had sole possession and control as the owner; that in September, 1896, the sheriff of Cook county had placed in his hands an execution issued on a judgment in favor of the Schoenhofen Brewing Company and against the said firm of Early & Osgood, and also a second execution in favor of the said brewing company and against himself and his wife, and that the saloon was about to be levied on to satisfy these executions; that thereupon he sold the saloon stock and fixtures to the appellee for the sum of $4,000, with the knowledge of Dreifuss, and without any objection upon his part; that he made the bill of sale and turned the keys over to appellee, Dawson, in the presence of Dreifuss, and the money paid by appellee was applied to the payment of the two executions and to other obligations of the firm of Early & Osgood; that appellee employed the witness to manage the saloon at a salary of $40 per week, and became responsible to Dreifuss for his salary of $25 per week as a barkeeper, and that he and Dreifuss remained in the employ of the appellee in their respective positions until the appellant, as sheriff, levied upon the saloon stock and fixtures under the execution on the judgment in favor of Patrick H. Early and against Early & Osgood on the 8th day of December, 1896. The testimony of the appellee tended to show that Osgood had possession and full control and all indicia of ownership; that he believed Osgood to be the owner, and bought in good faith, and paid $4,000 in cash for the property. Under the state of case which this testimony tended to establish, Osgood had the right to regard and treat the transfer of the interest of Early to Dreifuss as effecting a dissolution of the copartnership (Edens v. Williams, 36 Ill. 252; McCall v. Moss, 112 Ill. 493; Blake v. Sweeting, 121 Ill. 67, 12 N. E. 67; 17 Am. & Eng. Enc. Law [1st Ed.] 1099), and as investing him with power to sell the partnership effects to pay the debts of the partnership and wind up the firm (Id. 1153). Furthermore, this evidence raised the question whether Dreifuss had not, by allowing Osgood to control the property as owner, and by standing by and allowing Osgood to sell it to Dawson, become estopped to question the title of Dawson. 11 Am. & Eng. Enc. Law (2d Ed.) 429. The court therefore properly declined to direct a peremptory verdict for the appellant. Instruction No. 1 granted at the request of the appellee advised the jury that Dawson's purchase of the chattels in suit should be sustained if the jury should find, from the evidence, among other things, that the saloon was operated by Osgood as owner thereof. The objection to this instruction is that it was open to be given the construction by the jury that the sale should be held good if Osgood was operating the saloon as owner. We do not think the instruction was at all liable to be so misunderstood. It advised the jury as to the principles of law which should be applied if the jury believed certain statements of facts therein recited had been provThe apparent ownership of Osgood, if proven, was among the facts so recited in the instruction; but that feature of the case was not unduly emphasized, nor could the jury have understood the instruction to mean that that fact was decisive, within itself, of the en. case. The complaint as to the second and third instructions given on behalf of the appellee is that they proceed upon assumptions of fact as to the rights and interests of Osgood in the property. We think the objection is not good as to either of the instructions. Each of them advised the jury as to the law in the event the facts referred to in the instructions should be proven by the evidence, but did not interfere with the province of the jury to determine what had been proven. There is no good ground of objection to the fourth instruction. It advised the jury correctly as to the prima facie presumption of ownership which arises from the possession of personal property, and that the presumption was a rebuttable one. It did not authorize the jury to act upon the presumption alone, but only in view of all the evidence as to the real ownership of the property and the acts of the parties. The instructions asked by the appellant and refused, if given, would not have instructed the jury as to any legal principle of which they were left unadvised by other instructions given in the same behalf. The judgment of the appellate court is affirmed. Judgment affirmed. (197 III. 101) PEASE v. TRENCH. (Supreme Court of Illinois. June 19, 1902.) PRINCIPAL AND AGENT-ESTOPPEL BY ACT OF AGENT-AUTHORITY-EVIDENCE-WITNESS-IMPEACHMENT-APPEAL. 1. Where plaintiff in replevin was the owner of one of several judgments on which executions were issued and levies made by defendant sheriff, and the defense was that plaintiff's agent had directed the levy, plaintiff is not estopped, in the absence of evidence that the agent knew at the time that the property belonged to plaintiff or had authority to bind him in the premises. 2. Where it is sought to show estoppel of a principal by an agent's acts, evidence as to statements of the agent at the time is inadmissible, in the absence of evidence of his authority to bind the principal on the matter in question. 3. Where no authority is shown in an agent to bind his principal as to a levy on execution, and no proper foundation is laid for his impeachment, evidence of his statements made at the time of the levy is inadmissible. 4. Where a judgment in replerin for boxes of tin plate is confined to the pleadings, and is for the property therein described, embracing no property not in controversy, a contention that a certain number of boxes rightfully in possession of defendant were taken in replevying, and a like number belonging to plaintiff left in their stead, cannot be considered. Appeal from appellate court, First district. Action by Charics S. Trench against James Pease. From a judgment of the appellate court (98 Ill. App. 24) affirming a judgment for plaintiff, defendant appeals. Affirmed. Church, MeMurdy & Sherman, for appellant. Stephen G. Swisher, for appellee. CARTER, J. Trench, the appellee, brought a replevin suit in the circuit court of Cook county for 600 boxes of tin plate against Pease, the appellant, who, as sheriff, had levied several executions on said tin plate, with other tin plate and other kinds of personal property, as the property of one Ledwidge, to satisfy certain judgments against him. There was a trial, and a verdict and judgment for Trench. Pease appealed, and the appellate court affirmed the judgment; and Pease then took this appeal. Appellant has to a large extent reargued here the controverted questions of fact under the assignment of error that the trial court erred in refusing, at his request, to instruct the jury to find the issue for the defendant. We have examined the record, and find that there was abundant evidence for the plaintiff on which to submit the issues to the jury, and that it would have been manifest error for the court to have given the instruction. One of the executions was in favor of Trench, and appellant complains that the court refused to permit him to prove that the property was levied on by direction of one Shaw, Trench's agent. All the property levied on, including the tin plate, was stored in Ledwidge's warehouse, and was apparently so mixed as to make it difficult to distinguish and separate that of Ledwidge from that of Trench. It was shown by the evidence, and not controverted, that Wagner, Trench's attorney, who was also the attorney of the other judgment creditors, directed the sheriff to levy on all the property of Ledwidge in the warehouse. But appellant insists that the court erred in not allowing him to prove by Wagner that Shaw directed the sheriff to levy on the tin plate in controversy. While we think the trial judge should have allowed counsel greater latitude in the examination of Wagner, still we think it was sufficiently shown that, until the property in the warehouse was levied upon under the several executions by his direction, he supposed it belonged to Ledwidge. It was not error to refuse to permit appellant's counsel to prove by Wagner what Shaw said in reference to the tin plate, without proof that Shaw had authority to bind Trench in that regard, or without having laid the proper foundation for the impeachment of Shaw in the matter. As soon as it was ascertained the 600 boxes of tin plate belonging to Trench were included in the levy, Trench demanded the property of the sheriff, and, on the sheriff's refusal to release it, replevied it. Ledwidge could not be found, and there was very little, if any, evidence that the 600 boxes belonged to him, or that he had any interest in the tin plate whatever; and it clearly appears that the executions were levied upon it under the mistaken belief that it belonged to Ledwidge. The defense sought to be made by this line of inquiry was that the agent of Trench had directed the levy, and had thereby estopped Trench from afterwards claiming the property. To give rise to such estoppel it would have been necessary to prove, not only that such agent knew at the time that the property belonged to Trench, but also to prove that he had authority to bind Trench in the premises. The assignments of error as to the rulings of the court in giving and refusing instructions relate in the main to the same question, and we find no error in such rulings. It is also insisted by appellant that the coroner, in replevying the property, took 32 boxes of tin plate which had been levied on by the sheriff which belonged to Ledwidge, and left with the sheriff 32 boxes which belonged to Trench, and that that fact stands conceded of record, and that the judgment is obviously erroneous as to such 32 boxes, and, being erroneous as to them, it must be reversed altogether. It is sufficient to say that the judgment is confined to the pleadings, and is for the property therein described and described in the levy of the coroner, and does not embrace property not in controversy. We are unable to see how the question thus pressed here for reversal of the judgment is presented for our consideration. The judgment itself is correct, and we find no erroneous rulings of the court that contributed to its rendition. There being no material error, the judgment of the appellate court must be affirmed. Judgment affirmed, (197 Ill. 334) CHICAGO EXCH. BLDG. CO. v. NELSON. (Supreme Court of Illinois. June 19, 1902.) CARRIERS OF PASSENGERS-ELEVATORS-PERSONAL INJURIES-NEGLIGENCE EVIDENCE. 1. Plaintiff entered defendant's elevator on the eighth floor, desiring to go to the ground floor, and knowing it to be the custom, when a passenger wished to get off at an intermediate floor, to notify the conductor. On reaching the second floor the elevator stopped, and plaintiff, under the impression that it was the ground floor, started to leave, without speaking to the conductor, who started the elevator before closing the door, and plaintiff was injured. Held, that it was not error to refuse a peremptory instruction for defendant, as the evidence tended to show negligence on its part. 2. The evidence tended to show that plaintiff was in the exercise of due care and it was not error to refuse the peremptory instruction on that ground. 3. Persons operating elevators in buildings are carriers of passengers. 4. It was not error to submit to the jury the questions of ordinary care and negligence at the time plaintiff was leaving the elevator, without consideration of his mistake, as he had a right to alight at any of the usual stopping places. 5. In an action for personal injuries it was not error to refuse the special interrogatory, "Was the defendant guilty of negligence causing the injury in this case, and, if so, in what did such negligence consist?" as it was not restricted to the ultimate facts, but sought an opinion on probative facts. Appeal from appellate court, First district. Action by Nels Nelson against the Chicago Exchange Building Company. From a judgment of the appellate court (98 Ill. App. 189) affirming a judgment for plaintiff, defendant appeals. Affirmed. This is an action on the case for personal injuries, begun in the superior court of Cook county. Upon the trial a verdict was rendered for appellee in the sum of $2,000, and 64 N.E.-24 judgment entered thereon. Upon appeal to the appellate court the judgment was affirmed, from which judgment this appeal is prayed. Upon the trial below it appeared that on October 3, 1896, appellee entered the elevator of appellant, in the Chicago Stock Exchange Building, on the eighth floor, for the purpose of being transferred to the ground floor. At the time he entered the elevator he said nothing to the elevator conductor as to his destination. He admitted that he knew it was the custom when any passenger intended to get off at any intermediate floor to notify the conductor, and that, in case he did not so notify him, then the elevator conductor would be justified in believing that he intended to go to the bottom floor. When the elevator approached the second floor some one cried out "Down!" and the elevator conductor brought his elevator to a stop, and threw open the door. Appellee, observing the elevator directly opposite him on the other side of the corridor standing on a level with the floor, with the door open, and people getting out, and a man in uniform similar to that of an elevator starter standing by the elevator, supposed the elevator had reached the street floor. He thereupon started to go out of the elevator, and just as he was in the doorway the elevator conductor suddenly started the elevator downward without closing the door, although he did start to close the door at about the same time he started the elevator. This door was upon the grating that inclosed the elevator shaft, and not upon the cage of the elevator. The plaintiff got both feet upon the edge of the floor of the building, but as the elevator started one foot slipped forward and extended out on the floor of the building and the other foot remained on the ledge of the floor of the building. The plaintiff, as he felt himself falling, grabbed hold of some part of the elevator cage to support himself, and as the elevator descended, the crosspiece at the top of the door in the elevator struck his leg a few inches above the knee and the compression broke the bones of his leg. Before starting to go out he did not look to see whether the door was closing or not,he did not pay any attention. He testified, "When the elevator boy threw the door open to the elevator, and I thought it was the lower floor, I walked straight out without hesitation, not thinking there was any danger." It is contended on the part of the appellee that not only was the starting of the elevator without first closing the door negligence, but it was also negligence to start it while the appellee was in, or just entering, the door.. Alexander Clark, for appellant. M. V. Gilbert and Pliny B. Smith, for appellee. RICKS. J. (after stating the facts). It is first urged by appellant that the court erred |