itemized by the commissioners on the order of court, at the request of other objectors than appellees, cannot make it good as to appellees. There is no force in this objection. The proceedings before the county court plainly show for what purpose the money to be derived from the assessment was to be used, and we do not consider the commissioners' petition indefinite, uncertain or insufficient on this point.

It is further insisted by appellees that this assessment was levied to pay an indebtedness already incurred, and that under the decisions of this court in Winkelmann v. Drainage District, 170 Ill. 37, and Ahrens v. Drainage District, id. 262, an assessment for this purpose cannot be sustained. None of the objections filed by appellees in support of their motion in arrest of judgment would lead one to think, even from a careful study, that these objections were intended to raise this question. The motion in arrest of judgment should state concisely the defects complained of as being patent on the face of the record and the specific causes for which judgment should be arrested, otherwise the rulings of the lower court upon this motion can not be reviewed on appeal. (2 Ency. of Pl. & Pr. p. 816.) It is insisted by counsel for the appellants, and practically by counsel for the appellees in their briefs, and also manifest from the entire record, that the court did not sustain the motion in arrest of judgment on this ground. The wording of the order of court in sustaining the motion in arrest of judgment tends strongly to show this. The court sustained the motion and refused to approve the assessment only as to the property of appellees herein, but distinctly stated in the order that the assessment was approved “as to all other lands and property in said drainage district." If the court had sustained the objection on the ground that an additional assessment was being levied to pay an indebtedness already created by the drainage commissioners, logically and justly it should, of its own motion, have nullified the entire assessment roll. An appeal is taken for the pur

pose of reviewing the findings of the lower court, and not something that was not presented in that court. A defense not made will not be considered in this court on review. (City of Mattoon v. Noyes, 218 Ill. 594; Close v. City of Chicago, 217 id. 216.) On the face of this record we do not think the court was justified in sustaining the motion in arrest of judgment.

The judgment and order of the county court in this proceeding will therefore be vacated and set aside, and the judgment will be reversed and the cause remanded for further proceedings in accordance with the views herein set forth. Reversed and remanded.

THE CITY OF CHICAGO

V.

ANNIE PAGE et al.

Opinion filed June 19, 1907.

This case is controlled by the decision in City of Chicago v. Ogden, Sheldon & Co. 227 Ill. 595.

APPEAL from the County Court of Cook county; the Hon. W. L. POND, Judge, presiding.

CHARLES H. MITCHELL, and FRANK JOHNSTON, Jr., (JAMES HAMILTON LEWIS, Corporation Counsel, of counsel,) for appellant.

GEORGE A. MASON, for appellees.

Per CURIAM: The record in this case is in the same condition as that in City of Chicago v. Ogden, Sheldon & Co. 227 Ill. 595. The determination reached in that cause must control here, and the judgment of the county court of Cook county will accordingly be affirmed.

Judgment affirmed.

HERVEY H. DORR et al.

V.

THE PEOPLE OF THE STATE OF ILLINOIS.

Opinion filed June 19, 1907.

1. CONFIDENCE GAME-what is not sufficient to justify a conviction. To justify a conviction under an indictment for the confidence game it is not sufficient to prove the defendant guilty of such acts and fraudulent practices, only, as would subject him to liability in a civil action or to prosecution under some other provision of the Criminal Code.

2. SAME-what evidence does not sustain conviction for confidence game. Conviction for the confidence game is not sustained by proof that the accused was the manager of a corporation conducting a legitimate business, and that the complaining witness, after investigating the business, bought stock in the corporation and became a district manager under a written contract providing that if he resigned he should co-operate with the corporation to sell his stock to some one else, even though it is proven that he was unable to make the business pay, and that the accused refused to keep his verbal promise to take back the stock and return the money if the venture was not successful.

HAND, C. J., and VICKERS and CARTWRIGHT, JJ., dissenting.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. THEOdore Brentano, Judge, presiding.

Hervey H. Dorr and L. H. Sawyer were indicted for obtaining from Gustave Kitzeman, by means of the confidence game, a cashier's check for $500. A second count charged the check was obtained by false pretenses. A nolle prosequi was entered by the State's attorney as to said second count. A trial upon the first count resulted in a verdict of guilty, upon which, after overruling a motion for a new trial and a motion in arrest of judgment, the court pronounced judgment and sentenced the plaintiffs in error to the State penitentiary.

The evidence shows that about the year 1896 plaintiff in error Dorr originated and established a method of col

lecting debts by means of a series of letters which he furnished to business firms, to be mailed by such firms to their debtors. These letters purported to be sent by the "Merchants' Credit Guide Company." The system, in brief, was as follows: A merchant or manufacturer or other person doing a credit business would subscribe to the "Dorr system" and would pay a given sum for the privilege of using the system for one year. Such subscriber was then furnished with a supply of letters printed in typewriter type on the letter-head of the Merchants' Credit Guide Company. These letters were in a series and were four in number. The subscriber could use his own judgment as to the order in which he would send out these letters. They were so worded as to indicate that the Merchants' Credit Guide Company was writing them and that the information called for was for

purpose of enabling it to make a report. If a reply was made it would go to the Merchants' Credit Guide Company, and Dorr would then re-mail the reply to the creditor. The company known as the Merchants' Credit Guide Company was incorporated in 1899 with a capital of $2500. Seven hundred dollars was paid by two parties, who, after remaining in about six months, went out and the $700 was paid back to them. In March, 1900, plaintiff in error Sawyer bought $500 worth of the stock and was made secretary of the company. The balance of the stock was held by plaintiff in error Dorr, his wife and his brother. Dorr was president of the company. In April, 1902, the capital stock of the company was increased to $25,000, and in September, 1903, it was increased to $250,000. No money appears to have been paid in by Dorr or any one else, except the $500 paid by Sawyer, until the alleged sales hereinafter stated. Plaintiff in error Dorr testified that the capital stock was increased and the stock was issued on the value of the Dorr system of collecting debts. It appears that Dorr had copyrighted the letters which were used by subscribers, and the capital stock of the company represented, in the estimation

of Dorr, the value of his system and his copyrights. After the capital stock had been increased to $25,000 the corporation adopted the system of employing district managers and assigning them certain territory. Said district managers were required to buy stock in the corporation at par, and the contract of employment provided that the expenses of their respective territories should be, salary of the manager $150 per month, office rent not exceeding $25 per month, postage not exceeding $10 per month and commissions not exceeding $15 per month, all of which was to be paid from the receipts of the respective managers' territory. It was also provided in the contract that if the resignation of the district manager was tendered and accepted because the net income from the said manager's territory after a certain time (which in the Kitzeman case was three months after the date of the contract) should be less than $100 per month, he would co-operate with the corporation in endeavoring to secure a successor who would take up at the purchase price the stock held by him in the corporation. Gustave Kitzeman, the complaining witness, advertised for a position, stating that he had $500 to invest. Dorr answered the advertisement and Kitzeman went to his office, where he met both plaintiffs in error.

AYERS, RINAKER & AYERS, FRANK HAMLIN, and BROWNE & WILEY, for plaintiffs in error:

Where the constitution of the State provides that an indictment shall conclude "contrary to the peace and dignity of the People of the State of Illinois," an indictment which fails to so conclude is fatally defective and is a nullity. Williams v. State, 27 Wis. 402; Const. 1870, art. 6, sec. 33; Gould v. People, 89 id. 217;

Parris v. People, 76 Ill. 277; Whitesides v. People, Breese, 21; State v. Soule, 20 Me. 19. In all statutory offenses not known to the common law the indictment must conclude, "contrary to the form of the statute." State v. Soule, 20 Me. 19; Commonwealth v.