have since received rent from the tenant for what was left of the pier.

It is contended that the chancellor erred in decreeing partition according to the legal titles of the parties, because there had been a parol partition between Nichols and Clark, which should be recognized and enforced by a court of equity. A parol partition followed by possession by the tenants in common of the parts allotted to them severally, is sufficient to protect each in his several share set off to him by the agreement although it does not pass the legal title, and a court of equity will confirm such a partition. (Nichols v. Padfield, 77 Ill. 253; Hackleman v. Hackleman, 199 id. 84.) But the evidence of such a partition must be clear and satisfactory. (Ralls v. Ralls, 82 Ill. 243.) There is no doubt that Clark and Nichols, before the purchase of the property, contemplated a division by which. Clark would take five-sevenths and Nichols two-sevenths, but it is equally free from doubt that their plan was changed when the property was acquired, so far as the shore lot was concerned. The arrangement was carried out as to the block west of Lake avenue by a conveyance but it was abandoned as to the shore lot. There is no other reasonable explanation of the fact that while there was a division of the lots in the block the conveyance of the shore lot was of two-sevenths, and the further fact that Clark contributed five-sevenths of the cost of the pier at the south end. In his letter Clark said that he saw nothing of his car-load of lumber except the fence in front of Nichols' own lot, which either meant that part of the shore lot of which Nichols had possession or the part of the block that had been conveyed to him, since the other parts of the letter were inconsistent with any theory of a previous parol partition. By his answer Nichols claimed ownership of the south two hundred feet of the shore lot under the Statute of Limitations, but the evidence failed to show that his possession was adverse in its origin or that it ever became adverse to

Clark or the complainants. There was no error in decreeing partition.

Both parties complain of that portion of the decree relating to the accounting, and errors and cross-errors have been assigned in reference thereto. On one side it is contended that the chancellor erred in requiring Nichols to account at all for the use of the Seventy-sixth street pier, and if liable to account he was not allowed enough for repairs on the pier; and on the other side it is contended that the complainants should not be required to account for the use by Clark of the Seventy-fifth street pier or the rents received by them since his death, and that Nichols was allowed too much for repairs of the Seventy-sixth street pier. One ground for the claim that Nichols should not have been required to account for the use of the Seventy-sixth street pier is that it was an illegal structure on submerged lands of Lake Michigan, to which neither of the parties could have any title or right of property. The pier might have been removed at the instance of the State and might have been enjoined or abated as a purpresture. (Revell v. People, 177 Ill. 468; Cobb v. Commissioners of Lincoln Park, 202 id. 427.) But it does not follow that Nichols had a right to appropriate to himself the use of the pier erected at the joint expense and that he is not liable for the rental value of Clark's share. No action can be maintained for a breach of an illegal contract, but the claim of the complainants to an accounting was not based on any contract prohibited by statute or declared illegal by law. The State had a right to object to an encroachment upon submerged lands but did not object, and the same rule would apply as in the case of the extension of a wharf beyond an established wharf line or a building or other structure encroaching upon public grounds or a public way. (Gould on Waters, sec. 12; Dutton v. Strong, 1 Black, 23; Revell v. People, supra.) As the claim was not founded on the breach of an illegal contract the rule invoked does not apply.

It is also argued that the right to an account was barred by laches and limitations, but neither of these defenses was set up in the pleadings. Ordinarily the defense of laches must be set up by a plea or answer and the defense of the Statute of Limitations must be relied upon by demurrer or answer. Where a bill shows delay and sets up the causes and excuses for it, or where the bar appears on the face of a bill and the facts stated show that none of the exceptions in the statute take it out of the bar, advantage of the statute may be taken by demurrer. (Coryell v. Klehm, 157 Ill. 462; Spalding v. Macomb and Western Illinois Railway Co. 225 id. 585; Schnell v. City of Rock Island, 232 id. 89.) If the defense of laches had been made the complainants might have been able to amend their bill by alleging facts accounting for the delay, and a defense of the Statute of Limitations was not interposed either by demurrer or answer, so that neither laches nor limitations were in issue in any manner.

It is urged that Clark ought not to be charged the rental value of the Seventy-fifth street pier prior to his death, nor the complainants with rent actually received since his death, because Clark built the pier with his own funds and it was. destroyed by fire, so that it was a losing venture to him and to his estate. In partition, if one of the tenants in common has made an improvement, the court, if possible, will allot the portion improved to the one making the improvement without taking into account its value, or upon a sale may allow the increased value of the premises caused by the improvement. (Louvalle v. Menard, 1 Gilm. 39; Mahoney v. Mahoney, 65 Ill. 406; Manternach v. Studt, 240 id. 464.) The pier having been burned and the complainants alleging that the remnant has no value, there would be nothing to be allowed for it upon a sale and it would not be considered. an improvement in allotting the premises upon a division. It was located on the common property, and while it might be that in charging Clark with the rental value or the com

plainants with rent received up to the fire there might be an allowance of interest on the investment, the complainants could not be entirely relieved from the liability to account.

It would not be profitable to go into the details of the accounting as to either pier. No accounts were kept by either party, and owing to their neglect and the long lapse of time an accounting can only be approximately correct. After considering all the claims made on both sides we are satisfied that the accounting as approved by the chancellor is substantially right.

The decree is affirmed,

Decree affirmed.

GUSTAVE E. Koy, Appellant, vs. THE CITY OF CHICAGO et al. Appellees.

Opinion filed April 23, 1914.

I. MUNICIPAL CORPORATIONS-power to pass ordinances must be reasonably exercised. Where the legislature has authorized a city council to pass ordinances upon any subject the power thus conferred must be reasonably exercised, and whether its exercise in a particular case is reasonable is a judicial question.

2. SAME-city has power to regulate sale of milk. Clauses 50, 53, 66 and 78 of section 1 of article 5 of the Cities and Villages act clearly confer upon city councils the power to regulate the sale of milk and its products, and such power is essential to the preservation of the public health.

3. SAME-city may prescribe conditions under which pasteurzation may be done. A city has power to require the pasteurization of milk, and is not limited to the imposition of a penalty for a violation of such requirement but may prescribe the conditions under which the pasteurization shall be done and how compliance with such conditions shall be secured and be made to appear.

4. SAME-what does not render provision of an ordinance unreasonable. A provision of an ordinance requiring a recording apparatus to be installed on all milk pasteurizers, to record the temperature of the milk during the operation, will not be held unreasonable upon the grounds that such apparatus is expensive, unreliable, capable of being tampered with and of no benefit to the

milk dealer, as such questions are matters resting in the discretion of the city council.

5. SAME-paragraph (i) of article "B" of Chicago milk ordinance is not invalid. Paragraph (i) of article "B" of the Chicago milk ordinance, requiring recording apparatus on milk pasteurizers, is not invalid for unreasonableness, nor as compelling milk dealers, in effect, to pay for deputy health inspectors of the city for the purpose of detecting violations of the ordinance. (City of Chicago v. Weber, 246 Ill. 304, distinguished.)

6. SAME-police power authorizes prohibition of things hurtful to health. The legislature, and city councils in the exercise of police power, may prohibit all things hurtful to the health and safety of society, even though the prohibition invades the right of liberty or property of an individual.

7. SAME when courts cannot interfere with health measure of city. Court cannot overrule the determination of a city council that a particular method of protecting the public health shall be adopted, unless it is so clearly and manifestly wrong that there can be no doubt about it.

APPEAL from the Circuit Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.

ROBERT S. COOK, P. H. O'DONNELL, and EDWARD J. KELLEY, for appellant.

WILLIAM H. SEXTON, Corporation Counsel, (George L. REKER, and MAX M. KORSHAK, of counsel,) for appellees.

Mr. JUSTICE DUNN delivered the opinion of the court:

Gustave E. Koy filed a bill in the circuit court of Cook county on November 28, 1913, in behalf of himself and of all other persons similarly situated, to restrain the city of Chicago and its officers from revoking licenses issued to him as a milk dealer and from interfering with the distribution of milk products by him and by others similarly situated, for failure to comply with certain provisions of sections 1273 and 1274 of the Chicago code of 1911, as they were amended by an ordinance of August 14, 1912. A prelimi