regards the proportion his land is to bear of any assessment to be levied, but also as to the proportion every other tract will bear.

4. SAME when the question whether an illegal attempt at reclassification affects original classification is not material. Where an assessment of benefits to lands in a drainage district was apportioned partly according to an original classification of the lands. and partly on an attempted re-classification, the rights of the land owners are not to be determined by the question whether an illegal attempt at a re-classification affects an original one.

5. SAME-when a land owner may object to classification on an application for judgment. Where a land owner has notice of a proceeding to make a classification or re-classification of lands in a drainage district, with an opportunity to be heard before the commissioners, it is too late to object to the classification or reclassification on application for judgment and order of sale for a delinquent assessment; but the rule is otherwise if no notice and an opportunity to be heard were given.

APPEAL from the County Court of Jackson county; the Hon. WILLARD F. ELLIS, Judge, presiding.

R. J. STEPHENS, for appellant.

MARTIN & GLENN, (HAROLD F. LINDLEY, of counsel,) for appellees.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The commissioners of Boone's Pond Mutual Drainage District levied an assessment of $15,389.50 on the lands within the district and on a railroad and the public roads therein, for the purpose of cleaning out the old ditch and making other improvements. A full explanation of the facts was made in Boone's Pond Mutual Drainage District v. St. Louis, Iron Mountain and Southern Railway Co. 268 Ill. 264. The assessment was known as assessment No. 2, and was apportioned among the lands within the district according to an original classification, and was charged upon the railroad and public roads according to fractional figures

upon a re-classification which included only the railroad and public roads. On the appeal of the railway company the assessment was declared void as against its property. Upon the application of the county collector for judgment against the lands of the appellees, Ronald O'Daniel and George O'Daniel, the county court of Jackson county sustained objections and refused judgment. The material question now is whether the assessment could be sustained so far as it was levied upon the lands within the district although void. as to that part levied upon the railroad and public roads.

In the original classification the lands of the appellees were classified at 100, and when a valid classification is once made it remains the basis of future assessments until changed. (People v. Hulin, 237 Ill. 122; People v. Chicago and Interurban Traction Co. 267 id. 510.) It is provided, however, by section 21 of the Farm Drainage act, as amended in 1891, (Laws of 1891, p. 102,) that if it is found from experience and results that the original classification is not fairly adjusted according to benefits, it shall be disregarded and the commissioners shall make a new classification in accordance with justice and right. After the original classification was made in this district and the system of drainage had been completed a railroad was constructed across lands within the district, and the commissioners determined that the original classification was not fairly adjusted according to benefits and found the benefits to the railroad to be $1000 and to the public roads $500, but instead of classifying all the lands of the district so that an assessment might be fairly adjusted according to benefits they fixed the benefits to the railroad property and public roads alone. That proceeding was not authorized by statute, which requires a re-classification of all property within the district, and every land owner had a right to notice and a hearing, not only concerning the proportion which his lands should bear of any assessment to be levied

thereafter, but also as to the proportion which every other piece of property should bear. The land owners had no notice and no opportunity to be heard, either as to the fair proportion to be charged to their lands or the amount of benefits to the railroad or public roads. A certain sum of money was to be raised by an assessment, and every land owner had a right to have it fairly adjusted according to benefits and to that end to have an opportunity to be heard. The assessment was apportioned partly according to the original classification of the lands of the district after taking out that portion of the lands occupied by the railway company, and partly on the attempted re-classification. The assessment, therefore, was not based upon the original classification, and the rights of land owners are not to be determined by the question whether an illegal attempt at a reclassification affects an original one. If a property owner has notice of a proceeding to make a classification or reclassification, with an opportunity to be heard, it is too late to make objection to the classification or re-classification on the application for judgment. (People v. Whitesell, 262 Ill. 387; People v. LeTempt, 272 id. 586.) In this case, however, the land owners had no notice of any proceeding to re-classify the lands and no opportunity to be heard, either as to the fair proportion to be charged to their lands or the benefits to the railroad or public roads. The court did not err in sustaining the objections.

Various questions touching procedure are argued by counsel, but a consideration of them would not be profitable in view of our conclusions as to the validity of the

assessment.

The judgment is affirmed.

Judgment affirmed.

(No. 11057.)

STEINAR G. LANGHER et al. Appellees, vs. JACOB GLOS,

Appellant.

Opinion filed December 21, 1916.

1. APPEALS AND ERRORS-acceptance of benefits under a decree operates as a release of errors. If a party against whom a decree has been rendered voluntarily accepts the benefits conferred upon him by the decree such acceptance operates as a release of errors and may be pleaded in bar as such.

2. SAME-acceptance of part of amount decreed precludes writ of error. Where the defendants consent to an order of court that the costs charged against them be paid out of the amount decreed to them as reimbursement for setting aside their tax deeds, which amount had been paid into court by the complainants after a refusal of tender, such acceptance of part of the amount awarded as reimbursement bars a writ of error to reverse the decree on the sole ground that the amount awarded is insufficient.

APPEAL from the Superior Court of Cook county; the Hon. DENIS E. SULLIVAN, Judge, presiding.

JOHN R. O'CONNOR, and ALBEN F. BATES, for appellant.

WILLIAM GIBSON, and EDWARD J. PHILLIPS, for appellees.

Mr. JUSTICE DUNN delivered the opinion of the court: The appellees filed a bill for the purpose of setting aside a number of tax deeds as clouds upon their title to certain real estate in Cook county. Answers were filed by the holders of the tax deeds, which were replied to. During the pendency of the suit the complainants tendered to the defendants the sum of $294 for their costs and money expended in procuring the tax deeds and subsequent taxes and assessments paid. This amount was not accepted and by order of the court was deposited with the clerk for the use

of the defendants. The cause was afterwards referred to the master, evidence was taken and a report made finding the tax deeds void and that the amount deposited was sufficient, and recommending that the deeds be set aside and that the costs before the master be taxed to the defendant Jacob Glos. Objections filed to the report were overruled and a decree was rendered in accordance with the prayer of the bill, directing the master's costs, amounting to $128.75, to be taxed against the defendant Jacob Glos and awarding execution against him for such costs. The decree found that the total amount of tax sales and subsequent payments of taxes and assessments, and costs and expenses in procuring and filing said tax deeds and interest thereon, and the appearance fees of the defendants, was $288.48, and that the amount tendered and deposited with the clerk was $5.52 more than sufficient to re-pay that sum. The clerk was ordered to pay to the defendants $9, the amount of their costs, and the sum of $279.48 to certain defendants interested in the tax deeds, as their respective interests might be determined by the court, and to the complainants $5.52. Jacob Glos appealed, and the complainants have filed a plea of release of errors by him, alleging that the benefits decreed to the appellant in the decree appealed from were received and accepted by him; that after the rendition of said decree a certain order of court was with the consent of all the defendants entered in said cause, reciting that by the decree theretofore entered the master's fees and costs, amounting to $128.75, had been decreed as costs against the appellant, and that there had been deposited with the clerk, for the use of the appellant and the other defendants as reimbursement for setting aside their tax interests, an amount exceeding the sum of $128.75, and ordering that the clerk forthwith pay to the appellees or their solicitors the said sum of $128.75 in satisfaction of said costs so decreed against the appellant, and further ordering that the clerk satisfy the decree for costs on the records of the court upon