by the court to withdraw the exhibits filed with the examiner, but to hold the same subject to the order of the court for their production from time to time, as may be necessary. The first of these orders indicates that the exhibits were in the possession of the applicant's solicitor on August 27, while the latter order indicates that they were in the possession of the examiner on the day the exceptions to the report were heard by the court and the decree entered.

In McMahon v. Rowley, 238 Ill. 31, where the objection was made that the examiner based his report on certain evidence that was not returned with his report, we said: "Moreover, plaintiffs in error are in no position to complain. It was their duty, under the statute, if the evidence was not returned, to ask the trial judge for a rule on the examiner to report the evidence and file the same. The statute requires this, and this court has said that was the proper procedure in similar matters with reference to masters in chancery." In the case at bar the plaintiff in error made no attempt to obtain a rule on the examiner to file the exhibits in court. He is therefore in no position to complain that such exhibits were not returned into court. (Cregar v. Spitzer, 244 Ill. 208.) The subsequent order granting leave to the applicant's solicitor to withdraw the exhibits filed with the examiner indicates that the exhibits were in the possession or under the control of the examiner and that a rule on him to file them in court would have been effective.

It is also urged that the admission in evidence by examiner Farson of a transcript of the proceedings in said cause before former examiner Sheldon was error. While we agree with plaintiff in error in his contention in this regard, for the reason that such evidence had not been certified by Sheldon or included in or attached to any report to the court, (Coel v. Glos, 232 Ill. 142,) we do not regard such error as prejudicial. The only matter shown by that transcript which was not covered by other evidence intro

duced before Farson was a tender made by the solicitor for the applicant to Glos. The applicant was by the final decree ordered to pay all the costs of the proceeding, and the fact that a tender had been made was immaterial to any of the issues in the cause.

The assignment of errors refers to other alleged errors in the proceedings, but plaintiff in error has only argued those above considered. The others have therefore been waived.

Plaintiff in error having failed to point out any prejudicial error in the record of which he is in a position to complain, the decree of the circuit court will be affirmed.

Decree affirmed.

INDEX.

1

ABSTRACTS OF TITLE.

what is not sufficient proof to entitle abstract of title to
admission in evidence, under section 18 of Torrens law,
as an abstract made in usual course of business.....

'ACCOUNTING.

....

PAGE.

605

188

189

the word "account" has no clearly defined legal meaning. 188
party having authority to pass upon an account may waive
the right to have it itemized.....
Governor has power, under Illinois Central charter, to re-
quire a reasonably specific statement of the company in
reporting semi-annually its gross receipts....
Governor has power not only to investigate but to settle
accounts between Illinois Central and the State....... 189
binding force of Governor's action in passing upon semi-
annual accounts of the Illinois Central......
rule of estoppel does not apply to the charter contract be-
tween Illinois Central and the State....

... 189

.... 189

a bill for accounting must state a plain case, but precise
allegations are not required as to matters resting solely
within the defendant's knowledge....

what must be charged by the party who seeks to open an
account stated-mistakes or errors relied upon must be
specifically alleged and proved.....

189

190

190

what is not a sufficient averment of facts to justify open-
ing an account stated, for fraud.....
when an account may be regarded as an account stated-
semi-annual statements of Illinois Central rendered to
State prior to 1905 are stated accounts.....

....

190

a different rule of pleading applies where a bill is filed to
open a stated account and where the bill is simply for
an accounting...

190

ACCOUNTING.-Continued.

PAGE.

....191, 195

rules for an accounting between Illinois Central and State
for the years 1905 and 1906.....
when complainant is entitled to accounting though court
is not justified in declaring a trust-when complainant
is not entitled to a lien for balance due..

ACCOUNTS STATED.-See ACCOUNTING.

ACTIONS AND DEFENSES.

....

the right of a city to recover damages for an injury to its
streets and bridges is a private right, against which the
Statute of Limitations runs...,
good faith by mine examiner in making inspection to dis-
cover dangerous conditions in a mine is no defense if a
dangerous condition in fact existed.....
when tax-payer may maintain bill to enjoin letting of con-
tract for public improvement to be constructed with spe-
cial assessment fund......

313

29

32

43

plaintiff in action of tort against several may take judg-
ment as to one against whom a verdict is returned and
dismiss as to others-right of others to new trial...... 95
right of a complainant to dismiss his bill without preju-
dice may be waived-how done.....

109

109

when court may grant relief to minor defendants on cross-
bill after dismissing original bill.
when bill for partition cannot be retained for purpose of
construing will after court has found that complainant
has only a life estate......
right of stockholder to examine books of corporation-dis-
tinction between common law and statutory right...... 170
what is no defense to mandamus petition by stockholder to
compel corporation to allow him to inspect its books.. 170
doctrine of res judicata does not apply against or in favor
of a stranger-when record of civil suit against attor-
ney is not admissible in disbarment proceeding.. ... 299
when court of equity is not justified in declaring a trust-
right of complainant to accounting-when complainant
is not entitled to lien for balance due....
when the minority of a congregation cannot compel a par-
tition of church property...

313

another language..

when minority of congregation may be enjoined from in-
corporating under name of the church, translated into

injunction is a proper remedy to restrain unlawful inter-
ference with church property.....

328

328

328

ACTIONS AND DEFENSES.-Continued.

PAGE.

when contract should be specifically enforced-effect if the
complainant fails to perform on time-when complainant
is entitled to have rent deducted from purchase price.. 353
what is not a proper method of questioning existence of
complainant or authority of counsel to bring suit.... 354
jurisdiction of equity to enjoin collection of tax..
when tax-payer cannot be granted relief against improper
valuation of property by assessor.....

.....

.......

362

362

when there is no laches in seeking to set aside a deed to
homestead premises not joined in by grantor's husband. 399
when heirs of grantor are not estopped to claim homestead
property after grantor's death.....

399

465

what is not sufficient excuse for long delay in filing bill to
declare a trust and for accounting..
when right to dower is barred under Limitations act.... 469
any instrument having a grantor and grantee and contain-
ing a description of the land, with apt words to convey
the same, constitutes color of title......
in action by People against railroad for penalty for unjust
discrimination in rates the railroad company may show
that the rates charged were not unjust.....
equity cannot adjudicate legal rights unless equitable con-
ditions exist-when merits of an ejectment case are not
settled by dismissal of bill for injunction... . . . .
when equity may enjoin threatened acts on ground of ir-
reparable injury though there may be a remedy at law. 526
when defendant to bill to remove tax deed as a cloud is
estopped by privity to deny statement as to ownership
of land made in affidavit for tax deed......
568
when complainant in bill to remove tax deed as a cloud is
in possession of the premises...

469

474

485

... 569

....

578

593

courts will not entertain a bill to specifically enforce con-
tract to convey an interest in land which is mere expect-
ancy, having no present existence...
when equity will relieve party injured by false represen-
tation-representation as to amount of bonus being paid
for oil leases is a representation of fact......
a principal cannot shield himself behind his agent's igno-
rance to escape responsibility for misrepresentation... 593
when adding new plaintiff upon the trial of an action for
willful violation of the Mines and Miners act is not the
commencement of a new suit......
.... 610
defense of Statute of Limitations must be raised by plea. 610

ADMINISTRATION.-See EXECUTORS.