the first case she has no such opportunity and may never know of the judgment until long after it is entered. At common law a married woman had no power to make a confession of judgment or to execute a warrant of attorney to confess judgment. (17 Am. & Eng. Ency. of Law,2d ed.—p. 766, and cases cited; 21 Cyc. 1575, and cases cited.) If the contract is such as a married woman is incapacitated to enter into, her confession of judgment under the contract is a nullity. Her capacity to confess judgment depends upon and is co-existent with her capacity to contract. (30 Am. & Eng. Ency. of Law,-2d ed.—p. 107, and cases there cited.) In White v. Jones, 38 Ill. 159, where an attorney in fact confessed judgment prematurely against certain persons under power of attorney, this court said (p. 163): "The confession being unauthorized at the time it was made, the question arises whether it was merely erroneous or absolutely void. As a rule of general, if not uniform, application, a judgment is void for all purposes unless the court had jurisdiction of the person of the defendant and of the subject matter of the suit. And ju risdiction is acquired by the actual service of process notifying the party to appear, by constructive notice to appear, as by publication, or by an entry of his appearance by himself in person or by attorney. In the last case the authority of the attorney to enter his appearance may be contested by the defendant, and if he shows a want of authority it defeats the jurisdiction of the court. * For the want of authority there was no appearance and consequently no jurisdiction, and the judgment was void and all subsequent proceedings under it were invalid and conferred no rights upon the plaintiff in that judgment." In Bruschke v. Nord Chicago Schuetzen Verein, 145 Ill. 433, we held (p. 447): "Where an attorney entering the appearance of a defendant does so without authority, the judgment or decree based upon such act is void and may be collaterally attacked." In Gardner v. Bunn, 132 Ill. 403, it is stated

* *

that a judgment entered by confession by the clerk of the court in vacation, where no affidavit proving the execution of the power of attorney was filed with it, was absolutely void, and there was no jurisdiction over the person of the defendant. In People v. Seelye, 146 Ill. 189, it was held that if a court has proceeded without jurisdiction, either of the person or the subject matter, "its judgment is void to every intent and for every purpose, and it must be so declared in every court in which it is presented." Payson v. People, 175 Ill. 267; Demilly v. Grosrenaud, 201 id. 272; 23 Cyc. 1070; 24 Am. & Eng. Ency. of Law,-2d ed.P. 718.

Manifestly, at common law, by the great weight of authority, a confession of judgment on a warrant of attorney executed by a woman during coverture is void as to her and can be attacked either directly or collaterally. This being so, assuming, as we must, that the common law is in force in Ohio, it must be held that the judgment against appellant Anna M. Forsyth in the court of common pleas in that State was void, and the trial court in this State improperly instructed the jury to return a verdict against her, based solely on the transcript of the judgment record of the Ohio court. The Ohio judgment being void as to the wife, Anna M. Forsyth, the judgment of the superior court was also erroneous as to her husband, Joseph E. Forsyth. Williams v. Chalfant, 82 Ill. 218; Claflin v. Dunne, 129 id. 241; Knights of Honor v. Goldberger, 175 id. 19; Page v. DeLeuw, 58 id. 85.

For the reasons indicated in the foregoing opinion, the judgments of the Appellate Court and superior court will be reversed and the cause remanded to the superior court for further proceedings in harmony with the views herein expressed. Reversed and remanded.

THE CRANE COMPANY

V.

WILLIAM HOGAN,

Opinion filed June 19, 1907-Rehearing denied October 8, 1907.

I. APPEALS AND ERRORS- it is error to arbitrarily refuse to receive and examine instructions. It is error for the trial court to arbitrarily refuse to receive and examine instructions offered by a party, even though the court subsequently agrees to and does receive and examine part of them.

2. SAME it must affirmatively appear that error was harmless or reversal must follow. A judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows the error was not prejudicial.

3. SAME-a cross-error should be assigned instead of renewing the motion denied by Appellate Court. Where the Appellate Court denies appellee's motion to strike certain instructions from the bill of exceptions but affirms the judgment, the appellee, if he desires to insist upon his position, should assign cross-error upon the action of the Appellate Court in denying the motion and not renew the motion in the Supreme Court, since the latter court, in passing upon the Appellate Court's action, must consider the same record.

4. SAME when allowance of appellee's motion would require reversal. Allowance of a motion by appellee to strike from the bill of exceptions certain instructions which the trial court had arbitrarily refused to receive and examine would require a reversal of the judgment, since, in the absence of such instructions from the record, it could not affirmatively be made to appear that the arbitrary refusal thereof was harmless.

5. PLEADING the plaintiff must recover, if at all, upon the case stated in his declaration. If the plaintiff sets out in his declaration the negligent acts of the defendant which entitle him to recover he must prove such acts, and he cannot recover because of negligent acts not averred in the declaration, even though such acts caused the injury.

6. FELLOW-SERVANTS-when employees are fellow-servants. Employees of the same master, including the engineer and switchman and the laborers, working together in the same switch yard for the common purpose of bringing in and taking out, loading, unloading, weighing and switching cars, whose duties are such as to bring

them into habitual association enabling them to exercise a mutual influence upon each other promotive of proper care and caution, are fellow-servants. (Hartley v. Chicago and Alton Railroad Co. 197 Ill. 440, distinguished.)

APPEAL from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. GEORGE A. DUPUY, Judge, presiding.

RUSSELL M. WING, FRED M. WING, and FRED W. BENTLEY, for appellant.

COBURN & CASE, and MCGOORTY, POLLOCK & LOEB, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:

Appellee brought this suit in the superior court of Cook county, against appellant, to recover damages for the loss of a little finger while in the employ of appellant, and upon a trial obtained a verdict for $5000. On the hearing of a motion for a new trial the court announced that the verdict was excessive and that a new trial would be granted unless appellee remitted $1500 from the verdict. Appellee thereupon remitted the $1500 required, and the court being of opinion that appellee's damages amounted to $3500, the motion for a new trial was denied and judgment was entered for said amount of $3500 and costs. The Appellate Court for the First District affirmed the judgment.

Appellee has made a motion to strike from the transcript of the record certified to this court certain instructions contained in the bill of exceptions, which recites the following facts: At the proper time appellant presented to the judge. forty instructions as to the law claimed to be applicable to the case and asked him to give the same to the jury, but

he refused to receive or examine the same, saying that he would receive and pass upon twenty instructions, and no more. Appellant excepted to the refusal of the judge to examine or pass upon the instructions. After the opening argument to the jury was completed the appellant handed to the judge twenty instructions, which he passed upon, and subsequently, by his permission, two others were added. The instructions which the judge refused to receive were not filed with the clerk or marked for identification at the time, but subsequently, on the settlement of the bill of exceptions, appellant presented to the judge instructions, with affidavits that they were the same ones which he refused to receive or examine. The bill of exceptions recites that the judge found, solely upon the evidence contained in the affidavits, that the instructions are the same tendered to him during the progress of the trial and prior to the arguments of counsel and which he refused to receive. The ground of the motion to strike these instructions from the record. is, that the judge did not certify from his personal or judicial knowledge that the instructions were the same which were presented to him and which he refused to examine.

It was error to arbitrarily refuse to examine the instructions and decide whether they contained propositions of law involved in the case proper to be given to the jury. (Chicago City Railway Co. v. Sandusky, 198 Ill. 400; Chicago City Railway Co. v. O'Donnell, 208 id. 267; Chicago Union Traction Co. v. Olsen, 211 id. 255.) If the motion of appellee should be granted it would inevitably lead to a reversal of the judgment, since it would then appear that error was committed, and it could not appear that the error was harmless. A judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows that the error was not prejudicial. The court said in the case of Kirby v. People, 123 Ill. 436, that the rule is not that the court must see that the error worked