Slike stranica

in error in jumping from the car, were same to his wife, Dora Hornbrook, who substantially covered by two other instruc- thereby became, and now is, the owner of tions given by the court at the request of plaintiff in error. The third instruction was properly refused, as it was in conflict with the uncontradicted testimony that the water car in question was by Powell's direction placed where it was standing at the time of the accident.

the undivided six-sevenths of the land. Complainants are the only surviving heirs of Eliza Jane Thomas, a deceased daughter of Batshipy Hornbrook, and claim that through their mother they inherited, and now own, the undivided one-seventh of the land. The bill alleged that George Hornbrook, Sr., sur

The judgment of the Appellate Court will viving husband of Batshipy Hornbrook, and be affirmed.

Judgment affirmed.

(259 Ill. 156)

THOMAS et al. v. HORNBROOK et al. (Supreme Court of Illinois.. June 18, 1913.) 1. HUSBAND AND WIFE (§ 47*)-CONVEYANCES BY HUSBAND TO WIFE-VALIDITY. The act of 1861 (Laws 1861, p. 143) providing that property, acquired in good faith by a married woman from any person other than her husband, shall be her separate property, does not change the common-law rule that a conveyance from husband to wife is void at law, but valid in equity, when free from fraud and executed to make suitable provision for the wife.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 232-241; Dec. Dig. § 47.*]

2. HUSBAND AND WIFE (§ 47*)-CONVEYANCES BY HUSBAND TO WIFE-VALIDITY. Where a husband, in contemplation of leaving the state to escape being drafted during the War of the Rebellion, executed a deed to his wife in consideration of love and affection and to make provision for her support in his absence, the duration of which under the then existing conditions could not be foreseen, the deed will be upheld in equity, as a deed free from fraud and executed to make suitable pro

vision for the wife.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 232-241; Dec. Dig. § 47.*]

Shadrach Thomas, surviving husband of Eliza Jane Thomas, have conveyed their interest in the land to the owner of the fee; that Dora Hornbrook has given Frank Cole and V. L. Cole mortgages upon the premises; but that said mortgages were not a lien upon the interest of complainants. All of the Complainants were minors except Bessie B. Thomas, and sued by their next friend. Dora Hornbrook answered the bill, denying that Batshipy Hornbrook ever owned the land or had any interest therein except an inchoate right of dower, which was extinThe answer avers guished by her death. that George Hornbrook, Sr., was the owner in fee of said premises, and that in 1902 he conveyed the same, by warranty deed, to his son, George Hornbrook, Jr., who conveyed it to defendant Dora Hornbrook, and she claims to be the sole owner in fee. Said defendant Dora Hornbrook also filed a crossbill, alleging that George Hornbrook, Sr., became the owner of the land in 1859, and had ever since remained in possession and paid the taxes thereon until he conveyed the same to George Hornbrook, Jr., in 1902. The cross-bill alleged that in 1863, through inadvertence, George Hornbrook, Sr., deeded the land to his wife and filed the deed for record but never delivered it; that there was thereafter no change in the possession,

Appeal from Circuit Court, Clark County; ownership, and control of the said land; and M. W. Thompson, Judge.

Suit by Bessie B. Thomas and others against Dora Hornbrook and others. From a decree granting the prayer of the original bill and dismissing the cross-bill for want of equity, defendants appeal. Affirmed.

Frank T. O'Hair, of Paris, and Davison & Bartlett, of Marshall, for appellants. J. W. Graham and H. R. Snavely, guardian ad litem, both of Marshall, for appellees.

FARMER, J. Appellees filed their bill in the circuit court of Clark county for the partition of 70 acres of land therein described. The bill alleged that Batshipy Hornbrook acquired title to the land by deed from her husband, George Hornbrook, Sr., September 4, 1863, and died seised and possessed thereof in 1888, leaving surviving her her husband, George Hornbrook, Sr., and seven children named, as her only heirs at law; that five of said heirs by deeds conveyed their interest in said lands to their brother George Hornbrook, Jr., who conveyed the

that Batshipy Hornbrook never claimed any title or asserted any right of ownership thereto. The cross-bill alleged that the deed from George Hornbrook, Sr., to his wife, and other deeds mentioned, were clouds upon the title of Dora Hornbrook, and prayed that they be set aside. The complainants to the original bill, who were made defendants to the cross-bill, answered it, denying its material allegations, and reasserted their claim of ownership of an interest in the land. The cause was heard on both the original and cross-bills. A decree for partition and an accounting was entered in accordance with the prayer of the original bill, and the crossbill was dismissed for want of equity. From that decree defendants below have prosecuted this appeal.

In our view of the case its decision depends entirely upon whether any effect is to be given the deed from George Hornbrook, Sr., to his wife, in 1863. If that deed was effective to vest title in Batshipy Hornbrook, neither she nor her heirs were ever, under

the proof, divested of the title by any statute led to the conveyance is not stated. The of limitations or laches.

only consideration for the deed was love and
affection. It was held the conveyance was
but a reasonable provision for the wife, and,
the case being a proceeding in equity, it was
sustained upon authority of Dale v. Lincoln,
supra, and the authorities cited in the opin-
ion in that case. Other cases sustaining the
rule are Hunt v. Johnson, 44 N. Y. 27, 4
Am. Rep. 631; Sims v. Rickets, 35 Ind. 181,
9 Am. Rep. 679; Turner v. Shaw, 96 Mo. 22,
8 S. W. 897, 9 Am. St. Rep. 319; Corcoran v.
Corcoran, 119 Ind. 138, 21 N. E. 468, 4 L.
R. A. 782, 12 Am. St. Rep. 390.
to the contrary.

We find none

his absence, the duration of which, under the then existing conditions, could not be foreseen. The evidence brings the case squarely within the rule announced in the decisions above cited.

[1] It is contended by appellants that the rule of the common law is applicable to the conveyance, as it was made before the enactment of a statute authorizing conveyances of land from husband to wife. The act of 1861 (Laws 1861, p. 143), concerning the rights of married women, was in force at the time the deed was made. That act provided, among other things, that property acquired in good faith by a married woman during coverture, "from any person other than her husband," should be and remain her sole and separate property; but it made no change in the common law as to grants of [2] The proof shows the deed was made by property between husband and wife. Under George Hornbrook, Sr., to his wife in conthe common law there was such unity of templation of his leaving the state to esperson between husband and wife that they cape being drafted for service in the army were regarded as one and hence could not during the War of the Rebellion. He did make grants of property to each other. afterwards leave, going to Pennsylvania, While this was the rule at law and con- where he remained until the close of the veyances from husband to wife were void war, when he returned to his family and in law, they were, when free from fraud lived with his wife until her death. The and executed for the purpose of making suit- deed expresses a consideration of $500, but able provision for the wife, upheld in equity. there is no proof of the payment of any conA leading case upon this subject is Shepard sideration for the conveyance. The concluv. Shepard, 7 Johns. Ch. (N. Y.) 57, 11 Am. sion is warranted from the evidence that the Dec. 396. In that case a husband in 1808 deed was made in consideration of the afmade a deed to his wife for certain lands infection George Hornbrook, Sr., bore his wife consideration of natural affection and for and to make provision for her support in the purpose of making provision for her when a widow. In 1817 he conveyed the same lands to a son. The son denied, after his father's death, that the widow took any title by virtue of the deed from her husband. In an opinion delivered by Chancellor Kent, in which the previous authorities were reviewed, it was held that, while the deed was void in law, it was sustainable in a court of equity, and the widow's title was accordingly sustained. In Dale v. Lincoln, 62 Ill. 22, the court considered the validity of a conveyance of land by a husband to his wife in 1862. The husband was about to enter the army and take the field when the deed was made. He died in the army within less than a year after the deed was executed, and subsequent KNIGHT et al. v. PARTRIDGE DRAINAGE to his death his widow conveyed the property. The court held that ordinarily such conveyances are void at law, but that they would be sustained in equity when it appeared from the circumstances and the nature of the grant, whether it be expressed or implied, that the conveyance amounted only to a reasonable provision for the wife and was free from fraud. The Shepard Case and other cases sustaining that rule are cited approvingly in the opinion. In Majors v. Everton, 89 Ill. 56, 31 Am. Rep. 65, it is not stated when the deed from the husband to the wife was made; but, as it was contended in the case that the deed was void because made from husband to wife, we assume it was made before the passage of the statute authorizing such conveyances. Whether there were any special circumstances which

While some reliance is placed upon the claim of 20 years' adverse possession and also 7 years' possession under color of title and payment of taxes, and also laches, the proof wholly fails to sustain either of the claims.

The decree of the circuit court is affirmed.
Decree affirmed.

(259 Ill. 63)

DIST. et al. (Supreme Court of Illinois. June 18, 1913.) 1. COURTS (§ 219*)-JURISDICTION-JURISDICTION OF SUPREME COURT-ISSUES INVOLVED. missioners of a drainage district organized unA petition for mandamus to compel comder the Levee Act (Hurd's Rev. St. 1911, c. 42, §§ 1-74b). to erect bridges over highways in place of bridges removed by the commissioners does not involve a franchise or freehold, or the validity of a statute or the construction of the Constitution, and does not relate to revenue, and an appeal from a judgment of dismissal does not lie directly to the Supreme Court. Dig. $$ 539-542, 545-547, 549, 550, 552-573; [Ed. Note.-For other cases, see Courts, Cent. Dec. Dig. § 219.*]


A mandamus proceeding is an action at law, and is controlled by the Practice Act (Hurd's Rev. St. 1911, c. 110) in so far as the right of review is concerned; and, to give the

Supreme Court jurisdiction on direct appeal, | Drainage District, and shows that said drainthe case must involve a jurisdictional question specified in section 118.

[Ed. Note.-For other cases, see Courts, Cent. Dig. $$ 539-542, 545-547, 549, 550, 552-573; Dec. Dig. § 219.*]


The mere fact that the petition in mandamus to compel commissioners of a drainage district to erect bridges on a highway in place of bridges removed by them prays that if the district is without funds the commissioners be compelled to levy a special assessment to create a fund does not give the Supreme Court jurisdiction on a direct appeal from a judgment of dismissal, on the ground that the case relates to revenue, since the sole question is whether under the statute the drainage district must bear the cost of replacing the bridges, and since to give the Supreme Court jurisdiction the case must relate directly to the revenue, and not merely incidentally or remotely.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 539-542, 545-547, 549, 550, 552-573; Dec. Dig. § 219.*]

Appeal from Circuit Court, White County; E. E. Newlin, Judge.

Mandamus by Samuel Knight and others against the Partridge Drainage District and others, to compel the construction by the drainage commissioners of suitable highway bridges. From a judgment dismissing the petition, plaintiffs appeal. Cause transferred to Appellate Court.

James M. Endicott, of Crossville (Joe A. Pearce, of Carmi, of counsel), for appellants. Conger, Pearce & Conger, of Carmi, for ap


VICKERS, J. The commissioners of highways of the town of Phillips, in White county, and the town of Phillips, filed a petition for a writ of mandamus against the Partridge Drainage District No. 1 in White county, and the three persons who were acting as commissioners of said district, to compel the said drainage commissioners to erect suitable bridges at the points marked "A" and "B" on a plat, where old bridges across Brown branch had been removed by the drainage commissioners in the construction of the main drainage channel of said drainage district. The respondents appeared and filed a demurrer to the petition, which was sustained, and, the petitioners electing to stand by their petition, the same was dismissed and a judgment for costs rendered against the petitioners. The petitioners have prosecuted an appeal direct to this court to obtain a review of the judgment sustaining the demurrer and dismissing the petition.

The petition describes two public highways, one of which is known as Britton road, which said highway crosses Brown branch at a point designated on the plat as "A." The other road is known as Pond road, which is a public highway and crosses said Brown branch at a point designated on the plat by the letter "B." The petition alleges the due organization of the Partridge

age district selected and adopted the general course of Brown branch for its main drainage channel, that said Brown branch crossed both of the above-mentioned highways, and that suitable and sufficient bridges had been constructed by the highway commissioners on each of said roads across said Brown branch. It is alleged in the petition that in constructing the main ditch along Brown branch it became necessary to enlarge the natural channel at the points where said branch crosses the two highways mentioned, and that the drainage commissioners removed the highway bridges and enlarged the natural channel, and they now refuse, after proper demand, to replace the said bridges. The prayer of the petition is that the drainage commissioners be required forthwith to erect suitable bridges on the highway at the places from which the old bridges were removed. The sole question presented is whether, under the facts stated in said petition, the duty to reconstruct these bridges rests upon the drainage district. The drainage district is organized under the Levee Act (Hurd's Rev. St. 1911, c. 42, §§ 1-74b).

[1] We have carefully considered the questions involved in this appeal, and are forced to the conclusion that this court is without

Jurisdiction, on direct appeal, to decide the does not involve either a franchise or a freequestions raised upon this record. The case hold, nor is the validity of a statute or the

construction of the Constitution involved,

and the case does not relate to the revenue.

[2] In Watts v. Sangamon County, 212 Ill. 86, 72 N. E. 11, this court held that an appeal from a judgment of the circuit court sustaining a demurrer to a petition for mandamus should be taken to the Appellate Court as in other cases at law, in the absence of any of the conditions giving this court jurisdiction by direct appeal. People v. McCullough, 239 Ill. 552, 88 N. E. 177, was a petition against the auditor of public accounts to compel him to issue a warrant to a county superintendent of schools for an amount claimed to be due the petitioner for visiting the schools as county superintendent. There was a demurrer sustained to the petition and an appeal to the Appellate Court.

A writ of error sued out of this court to the Appellate Court was dismissed on the ground that the judgment of the Appellate Court was final. It was there held that the appellate jurisdiction of this court in mandamus proceedings was, like other cases at law, controlled by the Practice Act, and that that act conferred no jurisdiction to issue a writ of error in that particular case. These authorities establish the proposition that a mandamus proceeding is an action at law, and is controlled, in so far as the right of review is concerned, by the Practice Act, from which it follows that in order

to give this court jurisdiction by direct appeal the case must involve some of the jurisdictional questions mentioned in section 118 of the Practice Act (Hurd's Rev. St. 1911, c.. 110).

[3] There is an alternative prayer in the petition that in case said drainage district is without funds to build the bridges in question, the commissioners be required, by mandamus, to levy a special assessment to create a fund for that purpose. The mere circumstance that under this prayer of the petition the drainage commissioners might be compelled to levy a special assessment to pay for the bridges in question does not give this court jurisdiction on the ground that it is a case relating to the revenue.

In Reed v. Village of Chatsworth, 201 Ill. 480, 66 N. E. 217, this court held that a controversy between two municipalities over the right to receive a tax already collected did not relate to the revenue. On page 482 of 201 Ill., page 217 of 66 N. E., this court said: "Our view is that the question of revenue can only be at issue when some recognized authority of the state, or some of the municipalities authorized by law to assess or collect taxes, are attempting to proceed under the law and questions arise between them and those of whom the taxes are demanded. Here the tax is already collected and in the hands of the county treasurer, and no question arises between those who levied the tax and those who paid it." In Wells v. Rogers, 196 Ill. 292, 63 N. E. 651, this court held that a bill to enjoin the payment of money collected on a special assessment, to the contractors, on the ground that the work and material in the improvement were defective, and that the contract was not let by competitive bidding, was not a case relating to the revenue, and the appeal was dismissed. It was there said that in order to give this court jurisdiction under the Practice Act the case must relate directly to the revenue, and not merely incidentally or remotely. See, also, Hodge v. People, 96 Ill. 423, and Board of Supervisors v. People, 159 Ill. 242, 42 N. E. 777.

The case of People v. Hendee, 199 Ill. 55, 64 N. E. 1071, is more directly in point upon this question. That was a proceeding for mandamus against the county clerk to compel him to perform a duty in connection with the assessment of taxes. The only question involved was whether, under the statute, it was the duty of the clerk to prepare and furnish to the supervisor of assessments duplicate assessment books for personal as well as real property, and whether personal property should be listed for assessment in the same book with real estate. The point was urged upon this court that the case related to the revenue, and it was also suggested that the state was interested as a party or otherwise, but this court held that

the revenue was only incidentally or remotely involved, if at all, citing Wells v. Rogers, supra. The appeal was dismissed for the want of jurisdiction.

Whether or not it is the duty of the drainage commissioners to levy a special assessment under the facts stated does not in any way concern the revenue. The sole question is whether, under the statute, the drainage district should bear the cost of replacing these bridges. The determination of that question does not even remotely relate to the revenue.

The cause will be transferred to the Appellate Court for the Fourth District, Cause transferred.

(259 Ill. 213.) PEOPLE v. WARREN. (Supreme Court of Illinois. June 18, 1913.) 1. HOMICIDE (§ 338*)-HARMLESS ERROR-ERRONEOUS ADMISSION OF EVIDENCE.

Where the evidence showed that accused, a watchman in railroad yards, met decedent and companions in the yards at night, and that several shots were fired, and decedent killed, and there was no controversy as to who were present in the yards except as to whether there were three or four men with decedent, the error in permitting a state's witness to state that he afterward learned that the man who started to draw a gun was accused was harmless.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.*] 2. WITNESSES (§ 270*)-CROSS-EXAMINATION—


The exclusion of questions on cross-examination not material to the merits, and of no special importance as tests of credibility, is within the trial court's discretion.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 926, 955-957; Dec. Dig. § 270.*1 3. HOMICIDE (§ 203*)-EVIDENCE-DYING DECLARATIONS-ADMISSIBILITY.

Where decedent, fatally shot on Friday morning, died the following Monday morning, and was immediately informed by his attending physician that he could not recover, and he hope was to live long enough to see his parents, believed that he could not recover, and his only while he expected death almost immediately, his statements were admissible as dying declarations.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.*] 4. HOMICIDE (§ 202*) - EVIDENCE - ADMISSI


The actual physical and mental condition his condition, may be shown to render stateof decedent, together with what he thought of ments made by him admissible as dying declarations, and the fact that the circumstances disclosed may arouse the sympathies of the jury does not justify the exclusion of the evidence. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 429; Dec. Dig. § 202.*] 5. HOMICIDE (§ 169*) - EVIDENCE-ADMISSI


Where a state's witness denied on crossexamination that he had been in a lunchroom with decedent and a third person on the night of the killing, and that they had tried to buy cartridges or asked for beer with their lunch, culated to elicit answers that the state's witquestions asked a witness for the defense calness and his companions had asked for drinks

at the lunchroom, and had tried to buy cartridges, unaccompanied by any attempt to show that they had procured drinks or cartridges, were properly excluded.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.*] 6. CRIMINAL LAW (§ 789*)-INSTRUCTIONSREASONABLE DOUBT.

An instruction on reasonable doubt should be concise, and a very lengthy instruction on the subject is objectionable as tending to confuse the jury.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.*] 7. CRIMINAL LAW (§ 761*)-EVIDENCE-IN


An instruction that, before accused can avail himself of the right of self-defense, it must appear that the danger was so urgent that to save his own life or to prevent his receiving great bodily harm the killing of decedent was necessary, or apparently necessary, or apparently necessary, and that decedent was the assailant, was erroneous as assuming that accused killed decedent where there was evidence that decedent was in the range of shots fired by third persons. [Ed. Note. For other cases, see Criminal Note.-For Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771, 1853; Dec. Dig. § 761.*]


An instruction that declarations made by decedent of sound mind and fully impressed with the belief that he would die are entitled to the same weight as if made under sanction of an oath is erroneous, for the weight to be given to a dying declaration is for the jury.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.*]

they were going and turned on them a flashlight which he carried; that two of them drew revolvers and one started off the tracks to the east and the others to the west; that the man going east shot at him twice, and he thereupon drew his revolver and fired five shots in the direction of the flash of the last shot fired at him, without seeing the man. At his last shot shots were fired at him from the west side of the track, the bullets singing past close to him. The flash at which he had fired was in range of these bullets. The defendant then started to run, but stumbled in a ditch and fell down. James Greenlee, the deceased's brother, and James Bain, a young man who was with them, testified that the three were walking north on the railroad track when they met the plaintiff in error, who spoke to the deceased and asked what he had on him. The deceased started to light and a revolver, and began shooting at run, and the plaintiff in error drew a flashthe deceased. The other two men ran north, and after the shooting was over found the deceased, who had received a gunshot wound in the back. The plaintiff in error remained on duty in the railroad yards until 6 o'clock, when he went home and to bed until noon, and upon getting up first learned from the chief of police that a man had been shot.

[1] On the trial James Greenlee testified that "he started and pulled his gun, Mr. Warren did, or this fellow; I suppose it was Mr. Warren." This testimony was stricken

Error to Circuit Court, Marion County; out, but the witness was permitted, over obAlbert M. Rose, Judge.

Harry Warren Warren was convicted of manslaughter, and he brings error. Reversed and remanded.

jection, to state that he afterward learned that the man who started to draw a gun was Harry Warren. This was improper, but it did no harm, for there was no controversy

except as to whether there were three men or four with the deceased.

J. J. Bundy, of Centralia, and Kagy & as to who were present there on the tracks, Vandervort, of Salem, for plaintiff in error. P. J. Lucey, Atty. Gen., Samuel N. Finn, State's Atty., of Salem, and George P. Ramsey, of Mt. Carmel (Charles Holt, of Salem, of counsel), for the People.

DUNN, J. The plaintiff in error was indicted for murder and convicted of manslaughter. He insists that the verdict was not sustained by the evidence, and that the court erred in admitting and rejecting evidence and in giving and refusing instructions. The evidence is conflicting, and we shall not discuss its weight, since the judgment must be reversed for errors occurring on the trial.

[2] Objections were sustained to several questions asked this witness on cross-examination. They were all immaterial to the merits and of no special importance as tests of credibility in any way, and the court did not err in the exercise of his discretion in excluding them.

[3] After the deceased was found by his brother and James Bain, he was taken to the house of Mrs. Shiplor and a surgeon was summoned who examined and treated him, being at the house several hours. After he had gone, the deceased had a conversation with Mrs. Shiplor in which he gave an acThe deceased, Arthur Greenlee, was shot count of the circumstances of the shooting, in the yards of the Illinois Central Railroad and this and later statements of the deceased Company at Centralia on the morning of were offered as dying declarations and over August 23, 1912, soon after midnight, and objection were submitted to the jury. It died three days later. The plaintiff in error is insisted that there was not sufficient proof was employed by the railroad company as that the deceased believed that death was a watchman in the yards. He met the de- imminent, and that he had no hope of recovceased, in company with two or three other ery. Dr. Foster, the physician, testified that young men, walking north along the tracks on his first visit he told the deceased that through the yards and accosted them. His he feared he was fatally injured and would testimony was that he asked them where never get well; that the injury was over

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