week or month, according to the people and price she could get,—and that some of her property went into each of the properties.

The decision of the issues on the supplemental bill depended upon the credibility of the witnesses and the weight to be given to their testimony. The testimony of the complainant and his wife was directly contradictory. He was corroborated to some extent by the testimony of Margaret Torpey, his wife's sister. The defendant's testimony was not corroborated, and on its face a part of it seems improbable. The chancellor saw the witnesses and had a better opportunity to judge of the amount of credit which should be given to them, respectively, than we have. We cannot disturb his findings in regard to the title of the property or relative claims of the complainant and his wife. They seem to us to be in accordance with the evidence.

In regard to the appellant Macaulay the case is different. He was an attorney who had represented Mrs. Dorian in the municipal court and probate court, and on July 20 she executed a mortgage to James E. Callahan, as trustee, to secure her promissory note for $500, payable to Macaulay one year after date, and also several checks signed by her, amounting to $450. He testified in regard to the services he had performed and the circumstances under which they had been rendered and the services that he contracted to perform at the time the trust deed was given, and testified that they were reasonably worth $1000. There was no contradiction of this testimony. The decree was based on the finding that Macaulay was charged with notice that the property was claimed by the complainant to belong to him. The court made a finding "from the evidence and from observation of the defendant, Catherine Dorian, that she is mentally weak from the effect of drinking liquor; that she was not in a proper state of mind when she signed the notes and trust deed for Macaulay, her attorney, but obediently signed them at his request after they were pre

pared by said Macaulay. The court finds that on July 20, 1917, or at the time the said trust deed and note secured by it to said Macaulay was executed by the said Catherine Dorian, she was intoxicated and in such a condition of mind that she was not competent and capable of executing said trust deed to the said Callahan and the said note executed to said Macaulay secured by it, and for this reason both instruments are void and without effect so far as it affects the title to said described property and the complainant." This finding is not sustained by the evidence. The only testimony in regard to the execution of the mortgage is that given by Macaulay and Mrs. Dorian at the time it was executed. Mrs. Dorian was confined in the East Chicago avenue police station, having been arrested for nonsupport of the children. Macaulay was not permitted to testify to what was said at that time, but he testified that Mrs. Dorian was not intoxicated; that after their conversation he took out the trust deed and notes and she signed the notes and he filled out the trust deed; that he discovered that he had spoiled one of the notes by writing his name in the wrong place, and he had some checks that Mrs. Dorian had given him for $450, therefore he made the trust deed to secure the one $500 note and the checks. The notes were signed in the police station. The next morning Mrs. Dorian was brought into court and discharged. She then went to Macaulay's office and acknowledged the trust deed before a notary public, who testified that she was not intoxicated at that time. Macaulay had told Mrs. Dorian that in his opinion Dorian could be released from his imprisonment in the house of correction by habeas corpus proceedings, and agreed with her that if Dorian would sign the trust deed Macaulay would perform services for him. Macaulay testified that he saw Dorian in the house of correction the next day after Mrs. Dorian signed the notes and before she acknowledged the trust deed and told him of his agreement with Mrs. Do

rian, and that Dorian told him he would think it over, and asked Macaulay to go out again and see him. Dorian testified that he told Macaulay at that time that he was the owner of the property, but Macaulay testified that Dorian said nothing about it. When Macaulay had first been employed by Mrs. Dorian in the proceeding in the probate court for the appointment of a conservator for her, on examining the files he found Dorian's petition alleging that Mrs. Dorian was the owner of the property by deed from him, and there is no evidence that he ever had any notice that this was not a correct statement of the title except Dorian's testimony that he told Macaulay, when Macaulay visited him in the house of correction, that the property belonged to him. Mrs. Dorian testified that she had been arrested several times and that Macaulay had acted as her attorney and that she employed him and agreed to pay him, and that she did not sign any papers when she was intoxicated, and she was not intoxicated when she acknowledged the trust deed. The court could judge of the credibility of the witness from her appearance on the stand and of her mental capacity, but her appearance in the month of January, 1920, when the case was tried, was certainly no evidence that on July 20, 1917, when the trust deed was executed, she was intoxicated, or that she was then in such a condition of mind as not to be competent and capable of executing the trust deed, or that she obediently signed the notes and trust deed at Macaulay's request. These are questions that must be decided on the evidence as to what occurred at the time and not by the appearance of witnesses two years and a half later.

So far as this part of the decree is concerned it must be reversed. In all other respects the decree will be affirmed, but as to Macaulay and Callahan it will be reversed and the cause will be remanded, with directions to dismiss the supplemental bill as to them without prejudice.

Reversed in part and remanded, with directions.

(No. 13797.-Reversed and remanded.)

THE PEOPLE ex rel. Guy M. Wallace, County Collector, Plaintiff in Error, vs. THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al. Defendants in Error.

Opinion filed April 21, 1921-Rehearing denied June 9, 1921.

1. DRAINAGE when release from original assessment is not sufficient objection to assessment for current expenses. Whether or not drainage commissioners have authority to compromise an assessment of the original benefits in the organization of a drainage district, a release executed by the commissioners in making such a settlement cannot be made the basis of an objection to a subsequent assessment for current expenses and for the construction of bridges, where the release specifically provides that it shall not affect or prohibit additional levies for repairs and current expenses.

2. SAME-defense of res judicata to application for judgment for delinquent assessment must be presented to trial court. Although the defense of res judicata to an application for judgment for a delinquent drainage assessment may be a meritorious defense, if the question is not presented to the trial court by the written objections there filed it cannot be urged for the first time in the Supreme Court.

WRIT OF ERROR to the County Court of Saline county; the Hon. W. W. DAMRON, Judge, presiding.

J. B. LEWIS, State's Attorney, and KANE, WHEATLEY & SCOTT, for plaintiff in error.

CHARLES P. HAMILL, (JOHN J. PARISH, and MILEY & COMBE, of counsel,) for defendants in error.

Mr. JUSTICE THOMPSON delivered the opinion of the

court:

This writ is prosecuted to review a judgment of the county court of Saline county sustaining an objection of defendants in error to an assessment levied by the Rector Special Drainage District, a district in the counties of Sa

line and Hamilton organized under the Farm Drainage act. The assessment in question was a special assessment based upon the annual levy made for the purpose of taking care of the current expenses and for the purpose of building two bridges across the public highways. No part of the assessment in question was levied to pay for the original construction of the drainage district.

Plaintiff in error made application for judgment and defendants in error filed eleven objections. The first ten objections were overruled, and the action of the county court in this regard is not before us for review. The eleventh objection was as follows: "The classification of the objectors is contrary to the terms of a release executed by the commissioners of said district on October 14, 1913, which release is recorded in book J, page 440, of the clerk of the county court of Saline county, reference to which is hereby made, whereby said commissioners of said district released the said objectors from all claims and demands on account of classification of said objectors as liable for one-seventh of the cost of the said improvement." It was this objection which the court sustained, and the issue presented by it is the only question before us for review.

The drainage district in question was organized in 1910 and the original assessment was for $78,234.36. Classification was made of all the lands in the district, including the right of way of defendants in error. One-seventh of the benefits was assessed against the right of way, the amount being $12,050.66. This was divided into ten annual installments, and when the first installment became due defendants in error filed objections to the installment and a settlement and compromise of the litigation was made whereby defendants in error paid $8000 in cash in full settlement of the original benefits assessed against them. The release specifically provided: "It being understood that this release shall not affect or prohibit any additional levy for repairs or otherwise to be made in the future, if it should