She did not recognize the litt'e boy, seven years old. When I came out of the room I told Miss Keyes I was real sorry her mother did not know me, and she said she was under the influence of medicine; that it was the medicine that caused her to be in that stupor.

* Charles Kimmel's oldest daughter went into the same room where the old lady was, and the old lady did not recognize her at that time."

As was said in Purdy v. Hall, 134 Ill. 298, 25 N. E. 645 (on page 308, 134 Ill., and page 647, 25 N. E.): "Naturally, the mind sympathizes with the body in that which debilitates, and, even when not otherwise impaired, it may become so wearied from longcontinued, serious, and painful sickness that it is willing to purchase rest and quiet at any price, and when in that condition it is susceptible to undue influence, and is liable to be imposed upon by fraud and misrepresentation. The feebler the mind of the testator, no matter from what cause,-whether from sickness or otherwise, the less evidence will be required to invalidate the will of such person."

The foregoing testimony shows the condition of the testatrix, both mentally and phys. ically, the day the codicil was executed, and on Monday, the next day after its execution. That it was critical cannot be denied, and the jury undoubtedly were impressed with the belief that from these circumstances in evidence, notwithstanding the testimony of these subscribing witnesses, the testatrix knew but little about the execution of the codicil to revive a will executed in 1895, while she said nothing about desiring to revoke a will deliberately made only about three months before, and deposited in the bank by herself.

On the question of whether it was the testatrix who desired the codicil executed or appellant, the following testimony is found in the record: Appellant's own witness Mrs. Wyatt testifies that appellant "felt her mother would be near death, and she should not have her die and leave the old will. The old will only left the children with a dollar, and she [appellant] said, 'I cannot leave the girls that way.' The same witness says that, when she had placed the paper to write her name (as a witness to the codicil), no one had spoken to her, except "Jessie [appellant] told me, as I have already stated, about being anxious to have the will changed." Charles E. Kimmel testified that appellant said to him shortly after the testatrix's death that "she had the other will corrected so the girls (my sisters) would not be cut out." Maud Kimmel Huff swears that, on the Wednesday morning that her grandmother (testatrix) died, "Mrs. Wyatt came over and said, 'Jessie, you had better lie down.' Jessie went into the bedroom and laid down, and I heard her say to Mrs. Wyatt she was glad she had her mother do that Sunday night." While Mrs. Wyatt, in rebuttal, says she does not remember that appellant made use of this expression testified to by Maud

Kimmel Huff, she does not swear she did not say it, and appellant does not deny making these statements to Mrs. Wyatt, her own witness.

This testimony, taken in connection with the circumstances attending the execution of the codicil; the weak and serious condition of the testatrix; the insufficiency of the evidence to show that the testatrix requested two witnesses to sign the codicil as witnesses, or that she acknowledged to the witnesses that it was her desire to have the codicil become a part of her will; the fact that appellant's interest will be increased largely if the codicil is sustained,-must have satisfied the jury that the will of July 16, 1895, and the codicil dated February 26, 1898, were not the last will and testament of Martha A. Keyes, but of appellant. Where a will is procured to be written by persons largely interested in it, it is a circumstance to excite a stricter scrutiny, and requires stricter proof of volition and capacity. McCommon v. McCommon, 151 Ill. 428, 38 N. E. 145; Purdy v. Hall, supra; 1 Tayl. Ev. § 160.

It is unnecessary to further discuss the evidence in this record. The evidence is conflicting, and some portions seem irreconcilable. The judge who tried the case was satisfied with and acted upon the verdict, and it must be presumed he was satisfied with the finding. A careful consideration of the evidence does not show that the finding is clearly against the evidence. What was said in Calvert v. Carpenter, 96 Ill. 63, is peculiarly applicable in the case under consideration. We there said (page 67): "It can scarcely be repeated too often that the judge and jury who try a case in the court below have vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court sitting as a court of review. All we can do is to follow with the eye the cold words of the witness as transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie here. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed in the very nature of things cannot be transcribed upon the record, and hence they can never be considered by this court. For this reason the rule is firmly established that where, as in this case, there is an irreconcilable conflict in the testimony, this court will not reverse the judg

LEGALITY.

1. A city ordinance providing that the brick to be used in a certain municipal improvement shall be made of pure shale of equal quality to that found in three named localities is sufficiently specific as meaning that the shale shall be equal in quality to that found in either of the places named and in use for similar purposes, and city property holders who are assessed for the improvement cannot contest the legality of the assessment on the ground that the ordinance is void for an indefiniteness in fixing the quality of the shale, which might vary the cost of the improvement.

2. In considering a legal objection to a provision in a city ordinance fixing the quality of shale to be used in making brick for a certain improvement, by requiring that it shall be of a quality equal to that found in certain localities, it will be presumed that shale of a certain quality is found for such uses in the places named.

3. Where city property owners who have been served with notice of an assessment appear generally in court in answer thereto, and proffer objections to the assessments going to the merits, objections to the legality of the notice are waived by such appearance.

Appeal from Kane county court; M. O. Southworth, Judge.

Proceeding by the city of Elgin against William Hintze and others to confirm an assessment for a city improvement. From a judgment in favor of the city confirming the assessment, defendants appeal. Affirmed.

Botsford, Wayne & Botsford, for appellants. Chas. H. Fisher, Corp. Counsel (John P. Mann., of counsel), for appellee.

CARTER, J. The appellants contend that the judgment confirming the special assessment should be reversed because the court below overruled the following of their objections filed and relied on by them: "Sixth. That the ordinance in question does not sufficiently specify the nature, character, location, or description of said improvement." "Twenty-Third. That this court is without jurisdiction to hear or determine the said application at this term." "Twenty-Fourth. That this court has not now jurisdiction over the subject-matter of said application nor the several owners whose property is assessed for said improvement."

The provision of the ordinance on which the sixth objection is based is as follows: "All brick to be used shall be made of pure shale of equal quality to that found in Galesburg, Glen Carbon and Streator, in the

state of Illinois, and Canton, in the state of Ohio. The dimensions of the brick shall be same throughout the entire work, shall not be less than eight (8) nor more than nine (9) inches in length, shall be four (4) inches in depth, and not less than two and onehalf (2%) inches nor more than three (3) inches in thickness, with round edges with a radius of a quarter of an inch. Said brick shall be of the kind known as pressed brick, and shall be re-pressed to the extent that the maximum of material shall be forced into them," etc. And the points made are: First, that the ordinance sets up different standards by which the quality of shale of which the brick is to be made must be determined, which might vary the cost of the improvement; or, second, that it assumes that the quality of shale found at the four places mentioned is the same, and that it might prove impossible to procure shale equal in quality to the kinds found in said four specified places; third, that the ordinance is uncertain in not stating what particular shale in either of said four places is referred to. We are of the opinion the ordinance as it reads is sufficiently specific. It means that the shale used shall be equal in quality to that found in either of the four places mentioned, and in use for similar purposes. In considering the legal objection it must be assumed that shale of the quality demanded was found for such uses in each of the places mentioned. The contractor was not required to procure the shale from either place, but was required to procure and use shale of a quality equal to that specified.

and

The grounds of the twenty-third twenty-fourth objections are that appellants were required by the notice to appear, not at the first day of the next term, but at a later day within such term; and the question is raised by appellants whether the statute of 1897 (Laws 1897, p. 101) has so changed the law in this respect as to authorize notice to landowners to appear at some day within the term after the first. The objections, whether meritorious or not, were waived by appellants by their full appearance under objections going to the merits of the cause. The cause as to appellants' property was continued from the October to the November term, a jury was waived, and all the objections heard and overruled. Appellants, having appeared and urged their general objections, cannot now contend that they were not properly notîfied. The court had jurisdiction of the subject-matter, and obtained jurisdiction over them and their said property by the proceedings and their appearance, even if the notice was insufficient. Porter v. City of Chicago, 176 Ill. 605, 52 N. E. 318; Zeigler v. People, 164 Ill. 531, 45 N. E. 965. It is not necessary, therefore, to consider whether the notice given was authorized by the statute or not. The judgment must be affirmed. Judgment affirmed

(186 Ill. 283)

HARVEY et al. v. AURORA & G. RY. CO. (Supreme Court of Illinois. June 21, 1900.) STREET RAILROADS EMINENT_DOMAIN-LICENSE-RES JUDICATA.

1. Rev. St. c. 24, art. 5, § 1, par. 25, provides that city councils shall have the power to establish and change the location of any railroad within the city. Chapter 131a, § 2, declares that, when it is necessary for the construction, maintenance, or operation of any street railroad to take or damage private property, such taking may be accomplished as exercise of right of eminent domain. Held, that where a city passed an ordinance which claimed to be by authority of chapter 24, and which declared that a certain street railway should locate its line in certain streets and on certain private property, the ordinance was a nullity so far as establishing a route for the railroad was concerned, as the taking of private property is authorized only in case of necessity, under the statute, and not upon the judgment of a city council.

2. Rev. St. c. 24. art. 5, § 1, par. 25, provides that city councils shall have the power to establish the location of any railroad within the city. Chapter 131a, § 2, declares that, when it is necessary for the construction or operation of any street railroad to take or damage private property, such taking may be accomplished as exercise of the right of eminent domain. Held, where a city ordinance declared where the lines of a street railway might be located, and provided it should be located on no private property without the consent of the owner, the ordinance was a nullity as a location, since the railway company was not authorized to adopt the location by virtue of the ordinance, or upon proof of the necessi ty contemplated by the statute.

3. Where an ordinance declared that a street railway might locate its lines on certain streets and over certain property, and then provided that the location was to be made subject to such further conditions as might be imposed by ordinance when the railroad company should adopt the route, and that the ordinance was not to be construed as a grant of rights in any street, but that the determination whether such right should be granted was reserved until a petition for the same should be presented by the railway company, the ordinance was a nullity as a location, in that there was no grant of a right to go upon or along the streets on which the ordinance professed to provide for location.

4. Rev. St. c. 24, art. 5, § 1, par. 25, provides that city councils have the power to establish the location of any railroad within the city. Chapter 131a, § 3, relative to street railways, provides that no assent shall be granted of the location of the line of the street railway until public notice of the road's petition for a location shall be first given by 10 days' publication in some newspaper. Held that, where a city passed an ordinance which declared that a street-railway company might locate its line on certain streets without there having been a petition or publication of the notice thereof, the ordinance was a nullity as a location.

5. Where a city gave to a street-railway company the right to use certain streets on the condition that the road should grade and gravel the street, and pay $100 a year for a term of years, and the road accepted the burdens, and expended $3,500 in complying with the conditions, and built its road in the street, an ordinance thereafter passed, prohibiting the occupation of part of the streets occupied, was a nullity, since the license having been acted on, and a substantial consideration received by the city, the license became a binding contract.

6. Where, on proceedings by a street-railway company to condemn private property, owners of such property contested the company's right

to condemn the same, and the questions raised were taken to the court of last resort, the decision of that court concerning the company's right to take the property settled every objection which might have been raised, whether then raised or not, since the doctrine of res judicata embraces, not only what has been actually determined, but extends to any other matter which might have been determined.

7. It is not necessary, as a condition precedent to the location by a street-railroad company of such portions of its line as are not within, upon, or across a street, nor to the exercise of the power to condemn private property for purposes of its construction, that the consent of the city be obtained, as that may be secured subsequently.

Error to circuit court, Kane county; H. B. Willis, Judge.

Eminent domain proceedings by the Aurora & Geneva Railway Company against Jennie D. Harvey and others. Judgment in favor of plaintiff. Defendants bring error. Affirmed.

Edward O. Brown, for plaintiffs in error. Albert J. Hopkins, Frank H. Thatcher, and Fred. A. Dolph, for defendant in error.

CARTWRIGHT, J. This case is before us for the third time. Defendant in error was incorporated under the general act concerning corporations, in force July 1, 1872, for the purpose of constructing and operating a street railway. It located and constructed its railway in streets and highways, with the consent of the proper authorities, from a point in the city of Aurora to and through the city of Batavia, and from thence to a point in the highway south of the city of Geneva, and obtained permission from the city of Geneva to construct and operate its railway in Sixth street and Campbell street, in said city. Between said point in the highway south of Geneva and the south end of Sixth street it located its railway over private property, deflecting to the east from the public highway, and passing under the Chicago & Northwestern Railway, and over premises owned by plaintiffs in error and others, to the south end of Sixth street. It filed its petition in the circuit court of Kane county to ascertain the compensation to be paid to the owners of such private property. No necessity was shown for departing from the highway, but the court refused to dismiss the petition on motion of the property owners. Plaintiffs in error and others brought before us the record of that ruling, and we reversed it. Harvey v. Railway Co., 174 Ill. 295, 51 N. E. 163. We fully recognized the rule that the exercise of the power of eminent domain is a legisla ive question, and that the legislature of the state, representing the public at large, have paramount authority to delegate the exercise of that power to a corporation so long as the use is a public one, but we held the rule subject to the limitation that the taking must be within the power delegated by the legislature. A street railway is a road constructed on a street or highway, with the principal object

of accommodating street travel, and it can only be a street railway and fulfill that object by following the public street or highway, except in cases of temporary divergence under exceptional conditions. The courts will protect the property owner from an abuse of the power to take private property, delegated to such corporations, in case of necessity. The record contained no evidence whatever that it had become necessary to leave the public highway, and go across private property, in the construction or operation of the road, and there was evidence that it was wholly unnecessary. The cause was reinstated in the circuit court, and defendant in error amended its petition by setting up specifically a necessity for deflecting from the highway and taking private property, and the reasons therefor. The circuit court heard the evidence on that question, and dismissed the petition. Defendant in error appealed from that decision, and the case was here for the second time. The evidence in the record on that hearing proved the existence of such obstacles in the public highway and such dangers to the public in the practical operation of the road that the necessity for deflecting from the public highway contemplated by the statute had arisen, and the right to appropriate the private property of plaintiffs in error on which the road was located was within the power delegated by the legislature to street railways. We therefore decided that defendant in error had established its right, under the law, to condemn the property sought to be taken as described in the petition, and that the circuit court erred in its judgment denying it that relief. The judgment was accordingly reversed, and the cause remanded, with directions to proceed in conformity with the views expressed in the opinion then filed. Railway Co. v. Harvey, 178 Ill. 477, 53 N. E. 331. In pursuance of the directions so given, the defendant in error, as petitioner in the circuit court, served notice upon defendants to its petition that on Monday, April 17, 1899, it would apply to the circuit court to reinstate the case, and proceed to a final disposition of it. On the Saturday night preceding such application the city council of the city of Geneva passed an ordinance as follows:

"Section 1. The said Aurora and Geneva Railway Company, its successors or assigns, may, subject to all private rights which may be involved, and subject to said further conditions as may be imposed by ordinance when said railway company shall have definitely and precisely adopted a route within the limits of this ordinance, locate its right of way within the city limits of Geneva as follows, and not otherwise, namely: Along Batavia avenue, or any part thereof, from the southern city limits northward; along Shady avenue, or any part thereof; across private property in passing from one of the said streets to the other, provided the consent of the owner or owners of such private property be first obtained; across or along

Cheever avenue and across private property from the north end of Shady avenue northward to the right of way of the Chicago and Northwestern Railway Company, provided the consent of the owner or owners of such private property be first obtained; over the right of way of the Chicago and Northwestern Railway Company not east of where Sixth street extended southward would cross said right of way, or under said right of way at some point west of the Chicago and Northwestern Railway Company's depot and near the tunnel or culvert through which the brook passes; from the point of emergence after so passing under the right of way of the Chicago and Northwestern Railway Company westward over private ground, provided the consent of the owner or owners thereof be first obtained, parallel with said right of way and not more than fifty feet distant from the northern limit thereof, to land which would be in Sixth street if that street were extended southward to said north limit of the right of way of the Chicago and Northwestern Railway Company; northward on property which would be in Sixth street if so extended southward, as aforesaid, to South street, provided the consent of the owner or owners of said property be first obtained; across South street to Sixth street; along Sixth street to State street; along Campbell street from Sixth street to the court house; along Bridge street from Batavia avenue to First street; along First street to State street; along any street or streets from First street to the county court house.

"Sec. 2. Any location for said railroad not in this ordinance expressly allowed is hereby prohibited, including the route at present proposed by said railway company.

"Sec. 3. This ordinance is passed under power conferred in and by paragraph 25 of section 1, article 5, of the general incorporation act for cities and villages, and is to be construed as a provision for the location by the said railway company of its line within the city limits of Geneva and not as a grant of rights in any street, and the determination whether such rights shall be granted is reserved until a petition for the same shall be presented by the railway company under and in accordance with the provisions of paragraph 90 of said section 1, article 5.

"Sec. 4. Final action may be taken on this ordinance immediately upon its introduction or at any time thereafter, and the same shall take effect and be in force from and after its passage."

On April 17, 1899, the cause was reinstated according to notice, and plaintiffs in error entered their motion to dismiss the petition. No public right or interest was represented by the plaintiffs in error, but their motion related only to private rights, and was grounded upon the said ordinance, by which the city council had forbidden the location of the railway upon their lands. The court heard the evidence of the parties in support

of the motion and against it. The ordinance in question was offered in evidence, and it further appeared that there had been an ordinance of the city that all ordinances being presented and read should lie over for at least one week before final action should be taken thereon. On April 10, 1899, an ordinance was passed purporting to amend that ordinance so as to provide that ordinances should lie over at least one week, unless otherwise provided by a two-thirds vote of the city council, and this amendatory ordinance of April 10th was passed without complying with the general ordinance which it amended.

The following communication to the city from one of the plaintiffs in error was also admitted in evidence: "Geneva, April 22, 1899. To the Hon. Mayor and City Council of Geneva: It having been represented that there is danger of the city's becoming involved in expensive litigation on account of the ordinance providing for the location of the route of the Aurora and Geneva Railway Company, passed April 15, 1899, I hereby state that it is my bona fide intention to assert and test by proper proceedings in the courts, including the supreme court of Illinois, if necessary, the force and validity of that ordinance in the protecting of my property. This ought to render unnecessary any litigation by or against the city in the matter. I desire to add, however, that in case the ordinance be allowed to stand unrepealed, if the city should become involved in litigation on account of it I will bear all necessary expenses of such litigation, and relieve the city wholly therefrom. Very respectfully, Chas. Pope." It was also proved that the city council, two years before this time, on April 27, 1897, by ordinance, granted to petitioner consent and the right to use, locate, lay down tracks, maintain and operate, for a period of 20 years, its railway tracks and appurtenances in, upon, and along Sixth street, from South street to Campbell street, and on Campbell street from Third street to Sixth street. This ordinance was accepted by the petitioner. Afterwards the city council extended the time for building the road in Sixth street and Campbell street, with the additional requirements that petitioner should grade and gravel the street from curb to curb, put in all necessary culverts, and pay the city $100 a year during the first five years. The petitioner accepted the additional burdens, and expended $3,500 in complying with them, and built its road in such street. The petitioner settled with and paid the owners of various tracts of land along the route through the private property set out in the petition, and constructed a subway under the Chicago & Northwestern Railway on said route. The court overruled the motion to dismiss the petition, and proceeded to a trial before a jury, which ended in a verdict fixing the compensation and damages to be paid to the owners of the various tracts embraced in the petition. Judg- |

ment was entered on the verdict. No question is raised or error assigned as to the amount of compensation or anything that occurred at the trial. The bill of exceptions embraces only the motion to dismiss and the proceedings thereon, and the errors assigned relate only to the refusal of the court to sustain the motion and dismiss the petition.

Plaintiffs in error, in support of their assignments of error that the circuit court erred in not dismissing the petition, rely upon the ordinance of April 15, 1899, above recited, prohibiting the location of the railway over their lands, and naming another route. The lands of the plaintiffs in error Jennie D. Harvey, William P. Harvey, Sarah J. B. Crittenden, and Frank A. Crittenden are not within the city of Geneva, and, of course, that city would have no jurisdiction, in any event, to locate that part of the railway or to change or prohibit its location on their lands outside of the city. The tracts owned by the plaintiffs in error Annie M. Peckham and Charles Pope are within the city of Geneva, and the question as to the power to pass the ordinance, and the effect of it as to their lands, may properly be considered. The power is claimed by virtue of paragraph 25, § 1, art. 5, of the act for the incorporation of cities and villages, and the ordinance recites that it is passed under power conferred by that paragraph. It is contended, on the other hand, that the ordinance was never legally passed, because it was presented and passed at the same meeting of the city council, in violation of the city ordinance requiring it to lie over at least one week. It was passed under the provisions of the ordinance of April 10th, purporting to amend the ordinance establishing a rule of procedure, and that amendatory ordinance was passed in violation of such rule; but we will not consider the question whether the ordinance of April 15th, relating to petitioner's route, was legally passed or not, for various reasons.

In the first place, the ordinance cannot be regarded as an exercise of the power to provide for or change the location of a railroad, conferred by paragraph 25. Manifestly, an ordinance cannot be regarded as the location of a railway, or the provision for such location, unless the railway company may lawfully go upon the proposed route. In the case of a street railway, the right to diverge from the street or highway, and go upon private property, depends upon the necessities of construction and operation as a question of fact, and not upon the judgment of any city council. The statute authorizes such a taking of private property in cases of necessity, when the railway may diverge from the street or highway and return thereto when the obstacle or necessity for such divergence has passed or ceases to exist. We considered that question in Dewey v. Railway Co., 184 Ill. 426, 56 N. E. 804, and held that the passage of an ordinance by the village of Glencoe, locating a route over and across private property, did not authorize the railway company to follow