Of course, if the persona of the ship is merged, we are driven to say that when control by the sovereign ceases, necessarily a new persona is created whose soul is a 'tabula rasa' free of all stain of wrongdoing in its period of gestation. To fasten liability on it would require a unique obstetrical operation. A. K.

STREAM WATER RIGHTS-NAVIGABILITY OF STREAMS.-The rule to determine if a stream was navigable in fact, as observed in the State of Illinois, would seem to have for its test: Does the stream, in its ordinary and natural condition, furnish a common passage, capable of carrying commerce of practical utility to the public, in the customary mode in which such commerce is conducted by water. (ILL. L. REV. X 379; ILL. L. REV. IX 571.) Within that rule, one case, it appears (People v. Economy Power Co. 241 Ill. 290, 332), held that the Desplaines River was not navigable, and another case (Sanitary Dist. v. Boening 267 Ill. 126) held that the Calumet River was navigable. Now comes a decision of the Supreme Court of the United States (Economy Light & Power Co. v. United States 41 Sup. Ct. Rep. 409, U. S. Adv. Op. May 15, '21, p. 489) that holds that the Desplaines River is navigable.

In arriving at this conclusion, the United States Supreme Court would seem to disagree with the rule observed by the state court, in the holding that the mode by which commerce may be conducted is important. The United States court takes the position that the mode by which it may be conducted or the difficulties attending its conduct do not control. The capability of use by the public, in any mode for use as an avenue of commerce, is the test. Navigability is not destroyed because the watercourse is interrupted by occasional natural obstructions or portages; and the navigation need not be open at all seasons of the year, or at all stages of the water. With that definition the United States Supreme Court inquired into the history of the stream's use, and found that it was used for fur trading in the early history of the state, that supplies needed by the early settlers, in large quantities and varieties, were transported over the stream in canoes and other boats of like kind ordinarily in use for that purpose on rivers of the United States. Since 1835 a number of dams have been built in the stream, but, the court says, the inaction of Congress to order them taken away did not affect its authority at any time to do so. E. M. L.

RES JUDICATA-PARTIES-SUBJECT MATTER TAXATION.-Is it the intention of the Supreme Court by its latest pronouncement (People v. I. C. R. Co. 298 Ill. 516-519, 131 N. E. 624) to withdraw from the position taken in the case of People v. Clark 296 Ill. 50? The case of People v. Clark was one of application by the County Collector of Cook County for judgment against lands for delinquent taxes, and was a summary proceeding under Section 191 of the Revenue Act. Any judgment that might be entered in that proceeding would be a judgment in rem, not against the individual owner or owners of the property (People v. Ellis 253 Ill. 373; People v.

C. T. & T. Co. 266 Ill. 227; People v. C. L. & C. R. Co. 270 Ill. 519; People v. Drummer 274 ril. 643). The County Collector pleaded as against the objections made to the application for judgment a decree in chancery entered in the Superior Court of Cook County, in which a taxpayer brought a bill on behalf of himself and other taxpayers to enjoin the County Clerk from extending taxes on the grounds among others raised by the objections pleaded to. The court in the Clarke case held that the decree denying the prayer for injunction was res judicata of the application by the County Collector for judgment for delinquent taxes.

In the principal case (People v. I. C. R. Co.) the proceeding, likewise, was on application by the County Collector against lands for delinquent taxes, and in the principal case, as in the case of People v. Clark, there was a plea of res judicata, in that case of a judgment in mandamus brought by relator in the name of the people, but the court held that the mandamus proceeding did not operate as an estoppel, regardless of the question of the good faith with which it was brought. In that conclusion, the principal case cites and relies upon People v. C. B. & Q. R. Co. 247 Ill. 340, the same authority the other case (People v. Clarke) cited and relied upon.

It is true that in the principal case the adjudication relied upon as in bar of the later proceeding was brought by the holder of bonds which required the levy of taxes involved, but it was a suit brought in the name of the people and the case of People v. Whittaker 254 Ill. 542, makes it clear that in such a suit the people are party, just as they are in a chancery suit of the kind involved in People v. Clarke (People v. Harrison 253 Ill. 628). The conclusion would follow that the two cases are inconsistent and one of them wrong in principle, and, it is submitted, the Clarke case is the one that is wrong. It would seem that in the Clarke case the court confused the nature of the two actions involved. The equity proceeding was brought by a taxpayer without any special interest, or in fact any interest at all other than what he had in common with other taxpayers, whereas in the County Court proceeding the taxpayers' appearance was that of one with a special interest. The language in the case of People v. Harrison 253 Ill. 628-629, would seem to make very clear that distinction, and Pear v. City of East St. Louis 273 I11. 506, makes the same distinction: Thus, if the appearance of the taxpayer in both proceedings, that in which the plea of res judicata is made, and that which is pleaded as res judicata, is in his capacity as a member of the public or body of taxpayers generally, and not in any special capacity, then the plea is good, otherwise not.

Manifestly, in a bill in equity to enjoin the extension of a tax, brought by a taxpayer on behalf of himself and all other taxpayers, he acts in his capacity as a member of the public. But, when one appears in a summary proceeding only because he owns particular real estate against which it is sought to obtain a judgment, surely he comes in solely in a private and special capacity.

The special assessment cases would appear to be very much in point. Thus a judgment against one piece of land in a special assess

ment proceeding is not res judicata in a proceeding against another piece of land, even though the objections be the same (City of Chicago v. Partridge 248 III. 442-446 et seq.)—though, a judgment on one installment against a piece of land is res judicata of another installment against the same piece of land (People v. Locklin, 273 Ill. 107-108). By parity of reasoning, it would follow that a judgment, even for general taxes against one piece of land, could not be res judicata in a proceeding for judgment for general taxes against another piece. How, then, can an equity suit brought in the interest of the public, involving no piece of land at all, be res judicata of a proceeding against a particular piece of land? E. M. L.

DIVERSITIES DE LA LEY

OVERRULED CASES.-In any ordinary game, even a game of chance, it is always distinctly understood that the game is to be both played and decided in accordance with rules established before the game is begun, and any intentional deviation from the rules is almost sure to result in trouble. The fate of a card player found having in his sleeve more cards than the rules of the game justified is well set out in Bret Harte's poem concerning a game with "the heathen Chinee"; and the unpleasant notoriety achieved by a prominent society lady in England on account of suspicion of an irregularity in a game of baccarat is a matter of common knowledge. These are but instances. But a law suit is a game sui generis. Many a suitor, successful in the lower courts where he had scrupulously observed all the rules theretofore made, in the court of last resort has found himself the victim of post factum rules.

The Illinois Supreme Court reports contain many overruled cases. In some instances the cases were questioned from time to time before being actually overruled, as, for example, the Jacobs case, 20 Ill. 478, decided in 1858 and formally overruled thirty-six years later, in the Hessions case, 150 Ill. 546, 556. In reference to this case it was said in the Nolan case in the Appellate Court, 69 Ill. App. 104, 105: "The old doctrine of comparative negligence, formulated by Judge Breese in the Jacobs case and running its course through scores of volumes of Illinois reports, after being often nibbled at, has been finally formally repudiated in the Hessions case." A large proportion, however, of the overruled cases have been suddenly overruled, after having been followed for years, unquestioned, and occasionally a case-as the Tucker case, 117 Ill. 88 has been overruled, merely by a four to three vote, after it had been recognized and acted upon as the law of this state for twentyfive years. People v. Price, 250 Ill. 109, 116. A suitor, thus, without warning, being made to lose the fruit of his labor in the lower court, naturally feels that he has been made a victim of misplaced confidence; and the parties who had lost in the cases which were subsequently overruled, perhaps quite as naturally feel, on learning of the subsequent overruling, as if they had been sandbagged. All of them, however, are victims merely of the uncertainty of the law.

The explanation of the overruling of so many cases is occasionally to be found in change of view of all the judges who decided them, but most frequently it is to be found in change of personnel of the court-the atmosphere of the conference room sometimes being affected by a judicial election, as the weather sometimes changes with the moon. Thus among others:

The Jacobs case, 20 Ill. 478, already referred to, decided in 1858, 27 years later, after a complete change in the personnel of the court, was indirectly overruled in the Martin case, 115 Ill. 358; and,

nearly nine years later, after the personnel of the court had been again almost completely changed, it was formally overruled in the Hessions case, 150 Ill. 546, 556.

In the Holtz case, 92 Ill. 426, and in the Graham case, 104 Ill. 321, the decisions were "per curiam." In 1889, ten years after the decision in the first of these cases and seven years after the decision in the second, the personnel of the court having been changed by the election of four new members, both of those cases were overruled in City of Spring Valley case, 129 Ill. 169, 180, the opinion being delivered by one of the new members.

So, in the Cadwallader case, 114 Ill. 285, and in the Irons case, 114 Ill. 469, the opinions were "per curiam." Three years later, in Chaplin v. Commissioners of Highways, 126 Ill. 264, 273, the personnel of the court having been changed by the election of four new members, both of the former cases were overruled, one of the new members delivering the opinion, one justice not concurring.

Boatman v. Boatman, 198 Ill. 414, relating to remainders, was decided October 25, 1902, the decision being unanimous; and in Chapin v. Nott, 203 Ill. 341, 353, decided in June, 1903, the decision being unanimous, the Boatman case was cited as a controlling authority. Subsequently the Boatman case was referred to by a professor of law in Northwestern Law School, in an article relating to alienability of future interests-printed in December, 1907, in ILLINOIS LAW REVIEW-in which he said: "As a matter of fact, however, this state of the law is extremely archaic today. . . In this state we have been comparatively backward in law reform making future interests alienable. A distinct change, however, in the direction of the alienability has nevertheless been recently effected by our Supreme Court's changing the common law or feudal definition of a vested interest when the question of alienability arises. . . Such was the beneficent innovation wrought by the recent case of Boatman v. Boatman." The learned Professor presented his bouquet too soon, for in less than six months thereafter the personnel of the court having been changed by the election of five new members-in the Knock case, 235 Ill. 412, 421, the Supreme Court, by a unanimous vote, squarely overruled the Boatman case, the opinion being delivered by one of the new members. The Professor, in stating the law as established by the Boatman case, should have been as cautious in his statement as was the man who, stamping a letter and being uncertain as to the adhesive quality of the stamp, wrote on the envelope, below the stamp: "Paid if the darn thing sticks."

Overruled cases are also to be found in the United States Supreme Court reports, and even as to them the explanation is occasionally to be found in changed personnel of the court. Thus: In Hepbern v. Griswold, 8 Wallace 603, the court held void the statute making greenbacks legal tender, by a four to three opinion. Then Congress added another judge to the court, and another was appointed to fill the vacancy, and afterwards when the same question was again brought before the court, in Legal Tender cases, 12 Wal