the court fully and fairly submitted to the jury every proposition of law applicable to the facts. Plaintiff in error has no just cause of complaint on account of the modifications of the given instructions or the refusal of those not given.

A witness for the prosecution testified to a conversation had with plaintiff in error. Plaintiff in error was not a witness in his own behalf. In the argument of the case to the jury the State's attorney, in discussing this evidence, stated that the evidence of the witness detailing the conversation had not been denied. Plaintiff in error complains that this amounted to a reference to or a comment upon his failure to testify in his own behalf. This court has uniformly held that it is highly improper to comment upon or call attention to the fact that the defendant in a criminal case has not testified in his own behalf. (Quinn v. People, 123 Ill. 333.) But we do not regard the statement of counsel for the People in this case as in violation of the rule. The jury knew that the defendant had not testified, but whether this was because he was incompetent, or for some other reason, the jury were not advised. The bare statement that the witness who had detailed a conversation with the plaintiff in error stood uncontradicted was not equivalent to telling the jury that the defendant had the right to testify and had failed to do so. The language of the State's attorney in this connection was: "And the evidence of the witness stands unimpeached, undenied and unimpeachable, and I say in all fairness that a man who would do a series of things of that kind belongs, and his home is, in the penitentiary." The court overruled an objection to this statement, and while we do not approve of the argument, we do not think that it is equivalent to a comment upon or a reference to the failure of plaintiff in error to testify.

There are some other matters complained of in the argument of counsel before the jury which we have exam

ined, and our conclusion is that the objections, in so far as they were not sustained by the court below, are not serious enough to require a reversal of this judgment.

Plaintiff in error complains of the admission of evidence of other transactions of his with the prosecuting witness than the one upon which the indictment is based, both before and after the date of the particular transaction involved in this prosecution, and also evidence of similar transactions of plaintiff in error with other persons. The rulings of the court in this regard are sustained by the decisions of this court. DuBois v. People, supra; People v. Weil, supra; Same v. Same, 244 Ill. 176.

Plaintiff in error's final contention is, that the verdict is not supported by the evidence and that the court erred in refusing to direct a verdict of not guilty. The transaction upon which the indictment is based was a sale of mining stocks by plaintiff in error to J. H. Downs, for which Downs paid $10,000 by a draft on a bank. This particular transaction was one of a series of sales of stock made by the plaintiff in error to J. H. Downs and his daughter, Mrs. Ora B. Ridgely. Plaintiff in error was a married man, residing in St. Louis, whose business is that of a stock broker. The prosecuting witness, Downs, and his daughter, resided in Assumption, Illinois. Plaintiff in error first met Mrs. Ridgely in St. Louis through some friends of hers. She was a widow possessed of some means. Her father was quite wealthy. Plaintiff in error first interested Mrs. Ridgely in some mining properties in south-east Missouri. She went to see the mines, but having no knowledge of such properties she knew nothing of their value except what she was told. She purchased stock to the amount of $2000 in April, and later plaintiff in error visited her at her home in Assumption and she put in $1620 more. At this time plaintiff in error asked her if her father had any money, and she told him that he had. He did not meet her father on that visit but subsequently did meet

him. He became a regular visitor at the Downs home. He wrote many letters to Mrs. Ridgely, from which it is apparent that a love affair was mixed up with the mining transaction. Mrs. Ridgely testifies that an engagement to marry had been entered into between her and the plaintiff in error. Mrs. Ridgely received several dividends on her stock of two per cent a month. Where the dividends came from does not appear, but it is very clear that they were not legitimate profits from the mines. The inference is quite reasonable that the payment of these fictitious dividends was merely for the purpose of inducing Mrs. Ridgely and her father to make further investments at the solicitation of plaintiff in error. In August the prosecuting witness, Downs, made his first investment in stocks at the solicitation of plaintiff in error. He put in $9000. Afterwards he put in $35,000 more, and finally put in $18,000 at another time, $10,000 of which is the basis of the present prosecution. Fictitious dividends were paid to Downs, also, on his first purchase. The details of all these various transactions are in the record. To rehearse them in a chronological order would unnecessarily extend this opinion. The sum of the whole matter is, that plaintiff in error made love to Mrs. Ridgely, secured her confidence, and through her and through his direct representations to the prosecuting witness obtained the confidence of her father, and having their confidence he succeeded in obtaining from them more than $75,000 in cash for mining stocks in different companies, most of which are entirely worthless, and that in the consummation of these sales plaintiff in error resorted to false representations and fraud of the grossest character. We have carefully examined the evidence in the case and fully agree with the jury and the trial court that plaintiff in error is guilty of the offense charged. The judgment is affirmed. Judgment affirmed.

THE MORGAN CREEK DRAINAGE DISTRICT, Defendant in Error, vs. FRANK O. HAWLEY et al. Plaintiffs in Error.

Opinion filed June 21, 1912.

1. Drainage-rule where confirmation judgment is reversed and cause is remanded generally. Where a judgment confirming a drainage assessment is reversed and the cause is remanded by a general order, without any directions, the county court is bound to proceed in accordance with the statute and the law as declared in the opinion filed in the cause.

2. SAME-reversal does not affect the property of land owners who do not appeal. A judgment confirming a drainage assessment is a judgment in rem against the tracts of land severally, and an appeal or writ of error brings up nothing except the judgment against the lands of the persons appealing or suing out the writ.

3. SAME―the lands of persons not appealing are not to be reassessed on remandment. Where a judgment confirming a drainage assessment is reversed as to the lands of an objector and the cause is remanded, the only right or interest which he has when his lands are re-assessed under the statute is that the assessment shall not exceed the benefit to the land nor their proportionate share of the estimated cost of the work, and he cannot insist that the lands of other persons who did not appeal from the judgment shall be re-assessed.

4. SAME what errors will be considered on second writ of error. Upon a second writ of error to review a judgment confirming a drainage assessment only alleged errors which are claimed to have arisen since the first writ of error will be considered, as a party cannot, on second writ or error, take advantage of any error which existed and might have been assigned on the former record.

5. SAME-effect of release of right of way in accordance with maps and plans. A release by a land owner of the right of way over his land for the ditches of a drainage district in accordance with the maps, plans and profiles of the district has the same effect as though the maps, plans and profiles which were on file and had been approved by the court had been copied into the release.

6. SAME when land cannot be re-assessed merely by filing petition. Where, pending a writ of error by a land owner who has released a right of way for the ditches of the district, the ditches are constructed partly within and partly outside of the right of way released, the lands of such owner cannot be re-assessed, upon remandment of the cause, until the district has acquired the land occupied by the ditches outside of the right of way released and

determined the question of compensation and damages. (Vandalia Drainage District v. Railroad Co. 247 Ill. 114, and Vandalia Drainage District v. Hutchins, 252 id. 259, distinguished.)

7. SAME-right to compensation for land taken accrues at the time ditches are dug. The right to compensation for land taken for the ditches of a drainage district accrues at the time the ditches were dug and in favor of the person owning the land at that time.

WRIT OF ERROR to the Circuit Court of Kendall county; the Hon. MAZZINI SLUSSER, Judge, presiding.

A. H. SWITZER, for plaintiffs in error.

JOHN K. NEWHALL, for defendant in error.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The county court of Kendall county confirmed an assessment against a large body of land owned by Frank O. Hawley, one of the plaintiffs in error, levied by the Morgan Creek Drainage District, the defendant in error, and the record was brought to this court for review pursuant to a writ of error sued out by him. The judgment of confirmation was reversed for three reasons: (1) The oath taken by the commissioners was not sufficient in law; (2) the assessment was levied on lands taken for the use of the district and included benefits to such lands; (3) the assessment was for a greater sum than the estimated cost of the work, which was the limit of any assessment that could be legally levied. The cause was remanded to the county court by a general order without any directions, and under that order the county court was bound to proceed in accordance with the statute and the law as declared in the opinion filed in the cause. (Morgan Creek Drainage District v. Hawley, 240 Ill. 123.) After the original assessment was confirmed Frank O. Hawley conveyed the lands, in separate tracts, to the other plaintiffs in error, C. W.