tion of special assessments, in proceedings for the sale of lands for taxes and special assessments, and in all common law and attachment cases, and cases of forcible detainer and forcible entry and detainer." Proceedings in the county court for the organization of a special drainage district under the Farm Drainage act are not included within any of the classes of cases mentioned in section 123, supra, and appeals in such proceedings must therefore, under section 122, supra, be taken to the circuit court of the county unless said section 122 has been modified or repealed in this respect by some subsequent act of the legislature.

In 1877 the legislature passed an act entitled "An act to establish Appellate Courts," which was approved June 2, 1877, and became effective July 1, 1877, and which is commonly known as the Appellate Court act. Section 8 of said act, as amended in 1887, provides that the Appellate Courts created by the act shall have jurisdiction of "all matters of appeal, or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the superior court of Cook county, or county courts, or from the city courts in any suit or proceeding at law or in chancery, other than criminal cases, not misdemeanors, and cases involving a franchise or freehold or the validity of a statute," and that "appeals and writs of error shall lie from the final orders, judgments or decrees of the circuit and city courts, and from the superior court of Cook county directly to the Supreme Court, in all criminal cases and in cases involving a franchise or freehold or the validity of a statute," and plaintiffs in error contend that this section has, by implication, repealed section 122 of the County Court act. It has been held by this court that the effect of section 8 of the Appellate Court act is to repeal, by implication, so much of section 122 of the County Court act as is in conflict therewith. (Union Trust Co. v. Trumbull, 137 Ill. 146; Lee v. People, 140 id. 536; Grier v. Cable, 159 id. 29.) But it is apparent that said section 8 has no

application to proceedings such as the one now under consideration. An appeal to or writ of error from the Appellate Court would not lie under that section even though the case did not involve a freehold, a franchise or the validity of a statute, because the proceeding is not a suit or proceeding at law or in chancery. "A suit or proceeding at law, as those terms are used in section 8 of the Appellate Court act, must be understood to mean a suit or proceeding instituted and carried on in substantial conformity with the forms and modes prescribed by the common law," (Grier v. Cable, supra,) and on like principle a suit or proceeding in chancery must be understood to mean a suit or proceeding instituted and carried on in substantial conformity with the forms and modes prescribed by the rules of chancery, and where a franchise or freehold or the validity of a statute is involved, the jurisdiction of the Appellate Court is expressly excluded. Neither would an appeal to or writ of error from this court lie under said section 8, because it only provides for review by this court of the final orders, judgments or decrees of circuit and city courts. and the superior court of Cook county, and does not include county courts. It follows that section 122 of the County Court act, in so far as it provides for an appeal in cases such as the one under consideration, was not repealed by section 8 of the Appellate Court act.

Plaintiffs in error next contend that section 118 of the Practice act of 1907 requires all cases involving a franchise or freehold or the validity of a statute to be taken directly to the Supreme Court. This section of the Practice act, however, confers no right of appeal to or writ of error from any court. (Damon v. Barker, 239 Ill. 637.) The right of appeal or writ of error, in so far as the right is granted by the Practice act, is conferred by section 91 of the act, which provides that "appeals shall lie to and writs of error from the Appellate or Supreme Court, as may be allowed by law, to review the final judgments, orders or

decrees of any of the circuit courts, the superior court of Cook county, the county courts or the city courts and other courts from which appeals and to which writs of error may be allowed by law, in any suit or proceeding at law or in chancery." Section 118 of the act merely directs to which of the two courts appeals and writs of error allowed by section 91 of the Practice act, or by any other statute giving the right of appeal to or writ of error from the Appellate and Supreme Courts, shall lie in certain classes of cases. (Damon v. Barker, supra.) Section 91 only provides for an appeal or writ of error "in any suit or proceeding at law or in chancery," and as the term "suit or proceeding at law or in chancery" only includes suits instituted and carried on in substantial conformity with the forms and modes prescribed by the common law or by the rules of chancery, (Grier v. Cable, supra; Brueggemann v. Young, 208 Ill. 181;) said section 91 confers no right of appeal to or writ of error from the Appellate or Supreme Court in any case which is instituted and carried on in conformity with forms and modes not according to or recognized by the common law or rules of chancery but solely in accordance with statutory provisions, and does not, by implication or otherwise, repeal section 122 of the County Court act, in so far as the latter section provides for an appeal to the circuit court in such cases.

Neither the Farm Drainage act nor any other provision of the statutes of this State to which our attention has been directed grants the right of appeal to or writ of error from the Appellate or Supreme Court in proceedings for the organization of a special drainage district under the Farm Drainage act. It therefore follows that section 118 of the Practice act can have no application to the case now under discussion, and that the mere fact that a franchise, a freehold or the validity of a statute is involved is not sufficient to warrant this court in assuming jurisdiction of this case upon appeal from or writ of error to the county court.

Plaintiffs in error place great reliance upon the case of Lynn v. Lynn, 160 Ill. 307, as supporting their contention. that they have pursued the proper course in bringing this cause directly to this court by writ of error, and say that the Lynn case is conclusive upon the question now under consideration. We do not consider the case at all in point. It was there held that, inasmuch as the statute in regard to the administration of estates provides that an application for the sale of lands to pay debts shall be docketed as other cases, the petition may be amended, heard or continued for notice or other cause and that the practice in such cases shall be the same as in cases in chancery, and in view of the broad chancery powers conferred on the county. court in such cases by the act of June 15, 1887, (Laws of 1887, p. 3,) a proceeding to sell lands to pay debts may properly be regarded as a chancery proceeding within the meaning of a statute granting appeals to and writs of error from the Appellate and Supreme Courts in “any suit or proceeding at law or in chancery," and that if a freehold be involved, such proceedings were required by section 88 of the former Practice act (being section 118, supra, except an additional clause added in 1907,) to be taken directly to the Supreme Court, otherwise to the Appellate Court. It is apparent from an examination of the opinion in that case that the decision was based upon the fact that the Administration act required the proceedings for the sale of lands to pay debts to be instituted and carried on in substantial conformity with the forms and modes prescribed by the rules of chancery and not upon the fact that a freehold was involved in the case. In proceedings for the organization of special drainage districts under the Farm Drainage act, however, as we have hereinabove stated, the proceedings are not instituted and carried on in substantial conformity with the forms and modes prescribed by the common law or by the rules of chancery, and are therefore not within the meaning of the statutes giving the

right of appeal to and writ of error from the Appellate and Supreme Courts in "any suit or proceeding at law or in chancery." The Lynn case is therefore clearly distinguishable from the one at bar. The statute has provided plaintiffs in error with a remedy by appeal to the circuit court, and it is well settled that where such remedy is provided the cause cannot be removed from the county court to this court by writ of error. Hobson v. Paine, 40 Ill. 25; Holden v. Herkimer, 53 id. 258; Haines v. People, 97 id. 161; Kingsbury v. Sperry, 119 id. 279; Hart Bros. v. West Chicago Park Comrs. 186 id. 464.

The writ of error must be dismissed for want of jurisdiction. Writ dismissed.

GEORGE P. WALLNER, Defendant in Error, vs. THE CHICAGO CONSOLIDATED TRACTION COMPANY, Plaintiff in Error.

Opinion filed April 21, 1910-Rehearing denied June 8, 1910.

I. TRIAL-grounds upon which motion to direct a verdict may be made. The only grounds upon which a motion to direct a verdict for the defendant in a damage suit may be made are that the declaration does not state a cause of action or that the evidence does not fairly tend to support a verdict for the plaintiff, but it is not necessary to set out in such motion the particular defect of proof claimed to exist.

2. SAME question presented by motion to direct verdict is not necessarily whether there is evidence to support declaration. The question presented by a motion to direct a verdict for the defendant in a damage suit is not necessarily whether there is any evidence tending to sustain the allegations of the declaration, but also whether there is any evidence legally tending to sustain a verdict against the defendant.

3. SAME-effect where evidence of an affirmative defense is offered. Where evidence of an affirmative defense, such as release or accord and satisfaction, is offered in a personal injury case, and such evidence is not contradicted or explained, it is proper to