night and slept in the barber chair; that he | sulted him five or six times with reference was very drunk that night and was intoxi- to changing his will before the instrument cated every day. On redirect examination in controversy was drawn, and that on each he was asked: "From your observation of occasion he came to the attorney's office Mr. Monaghan, talking with him and being alone. It was also shown by this attorney with him, in your opinion, now, was he of and by the two attesting witnesses to the sound mind or unsound mind?" and replied, will that no one accompanied Monaghan "Well, he seemed to be kind of unsound." when he came to execute the will, and that A daughter of Margaret Mullen testified no one was present when the will was exethat she lived with her aunt, Bridget Green, cuted except Monaghan, the two attesting during the same period that William Mona- witnesses, and the attorney who drew the ghan lived with her; that she had heard Mrs. Green say that because Monaghan was drunk he did not realize what he was doing all the time.

James Monaghan, the last witness called by appellees, testified that he saw William Monaghan, his brother, three or four times during the last year of his life; that he observed that he had become nervous and "would talk a little bit wild sometimes," by which he said he meant that he "would speak of certain people in a pretty harsh manner and then in a short while would do the same thing again." He further testified that he thought during the last few months of his brother's life his mind was a little unsound.

The above is, in substance, all the testimony offered by appellees bearing upon the mental condition of the testator.

will

[2] The only questions presented for our determination are: (1) Is the verdict against the manifest weight of the evidence? and (2) did the court err in admitting the testimony of Susan Monaghan? Complaint is made of the action of the court in refusing to give two of the instructions asked on behalf of the appellants; but, as that matter was not assigned as one of the grounds for the motion for a new trial, it is not now open for review.

[3-5] The testimony on the question of undue influence is clearly insufficient to support the verdict. On the question of testamentary capacity it is evident that many of the peculiarities described by appellees' witnesses were but the maudlin actions and expressions of a drunken man. It is a grave question whether the verdict is not against the manifest weight of the evidence, even if it be conceded that all the testimony was properly admitted.

When Susan Monaghan was called as a witness and it was developed that her testimony related to the time when the marriage relation existed between her and the testator, appellants objected on the ground that she was an incompetent witness, stating as the basis of the objection (1) that she was the widow of the testator, and (2) that she was the mother of the two complainants, and

[1] The evidence offered to establish the charge of undue influence consisted of testimony which tended to show that during the year 1907, while Monaghan was conducting the saloon in the Monaghan Hotel building, he employed Thomas Green as bartender; that a short time afterwards he discharged his son Frank, who was tending bar for him, and shortly afterwards left his wife and went to live with his sister Bridget Green, the wife of Thomas Green; that Thomas Green negotiated the sale of the saloon business in the Monaghan Hotel thus interested. The relationship between building and rendered active assistance in the building of the Bee Hive saloon, and after it was erected conducted a saloon therein; that he also usually accompanied Monaghan when any business was to be transacted or when a large sum of money was to be withdrawn from the bank. On the other hand, the evidence on behalf of appellants shows that in November, 1910, Monaghan borrowed $1,900, which was used in paying a portion of the cost of construction of the Bee Hive saloon building; that during his lifetime $1,000 of this loan was repaid; and that Monaghan attended to these transactions himself. The evidence offered by appellants also tends to show that Monaghan looked after the repairs to his buildings and employed and paid the workmen who made those repairs.

With reference to the circumstances attending the execution of the will, it was shown by the attorney who drew the will and who had attended to Monaghan's legal

Mrs. Monaghan and the two complainants did not make her an interested party and constituted no objection to her testifying if she was not otherwise disqualified. It having been developed that she was called to testify concerning conversations, facts, and circumstances occurring during the time the marital relation existed between her and the testator, the knowledge of which she obtained only by means of such relation, the objection that she was an incompetent witness because she was the widow of the testator should have been sustained. At common law a wife could not be a witness for or against her husband as to any matter, nor could she, either during the marriage or after its termination by death or divorce, be called as a witness to testify to communications between them or to any fact or transaction the knowledge of which was obtained by means of the marriage relation. This rule of the common law has been modified by sections 1 and 5 of the Evidence Act

those sections renders the wife a competent | taining a charge of $20 for his services and witness except in the cases enumerated in showing a balance of $44.80 due the client. the exceptions found in section 5 of the act. Demand was made for the proceeds of the Schreffler v. Chase, 245 Ill. 395, 92 N. E. collection, but the respondent failed to pay 272, 137 Am. St. Rep. 330. The testimony the amount due or any amount, and the cliof Mrs. Monaghan does not fall within any ent then placed the claim in the hands of a of those exceptions and is clearly incompe- collection agency. After renewed demands tent. Her testimony upon the vital question the respondent paid $15 of the amount but in the case was of such a nature that it no more until after this information was must have strongly impressed the jury, and filed, when he paid the balance. In the othit was prejudicial error to admit it. er case a claim was placed in the respondent's hands for collection against a debtor residing in New York. The respondent forwarded it to an attorney in New York, and at the request of the latter collected from his client $15 for costs which he did not send to the New York attorney but kept. The claim was settled for $60, out of which the

For the error indicated, the decree of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

(265 Ill. 207)

PEOPLE ex rel. CHICAGO BAR ASS'N v. New York attorney kept $15 for fees, $5 for STORY. (No. 8620.)

expenses, and $11 which he claimed the re

(Supreme Court of Illinois. Oct. 16, 1914. spondent owed him on another account. He

Rehearing Denied Dec. 2, 1914.)

1. ATTORNEY AND CLIENT (§ 52*)-DISBAR

MENT PROCEEDINGS-INFORMATION.

Under the amendment of Supreme Court Rule 40 (85 N. E. xii) made at the February term, 1909, requiring that the information in disbarment proceedings be sworn to, only when filed by some aggrieved person, an information signed by the president and secretary of the Chicago Bar Association was not invalid because not signed by the attorney general or a state's attorney, and not sworn to.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 69, 70; Dec. Dig. § 52.*] 2. ATTORNEY AND CLIENT (§ 44*)-DISBARMENT PROCEEDINGS-GROUNDS FOR SUSPEN

sent the respondent a draft for the balance, $29. The respondent had therefore $44 of

his client's money in his hands and does not claim to have been entitled to a greater fee than $20. The balance he should have paid his client upon demand, but he failed to do so until after the information was filed, when he paid $40. He claims always to have been willing to pay the amount due, but that his client would never consent to accept less than $60, the whole amount collected. The respondent never, however, tendered payment of any amount, though his client was demanding payment.

[1] Objection is made to the validity of the information because not signed by the Attorney General or a state's attorney and not sworn to. The information is signed by

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 55, 56, 62; Dec. Dig. the president and secretary of the Chicago 44.*]

Disbarment proceedings by the People, on the relation of the Chicago Bar Association, against Frederick W. Story. Respondent suspended.

John L. Fogle, of Chicago, for relator. Joseph W. Merriam, of Chicago (W. P. Black and James R. Ward, both of Chicago, of counsel), for respondent.

Bar Association. Counsel appear to have overlooked the amendment of rule 40 (85 N. E. xii), made at the February term, 1909, which expressly authorizes such information, and requires the information to be sworn to only when filed by some aggrieved person.

[2] There is no substantial controversy as to the facts. The respondent insists that no demand was made upon him, and that there was a dispute in each case between him and his client as to the amount of his fees. The DUNN, J. An information was presented claim that no demand was made is based, by the Chicago Bar Association containing not upon the fact that the client was not rethree counts, two of which charged the re- questing payment of the proceeds of the colspondent, an attorney of this court practic- lection, but upon the disagreement as to the ing law in the city of Chicago, with collect- amount of the respondent's fees; the reing money for a client and refusing to ac- spondent insisting that the clients were de. count for it and pay over the amount due manding more than they were, respectively, the client upon demand, and praying that entitled to. On his own showing there was a the respondent's name be stricken from the balance due from the respondent in each roll. It is clearly shown, and in fact is ad- case, and the disagreement as to the amount mitted, that in one case the respondent col- of his fees afforded no excuse to the respond. lected $59.80 and received $5 from his client ent for refusing to pay the amount which he on account of costs which he was not re-admitted to be due. An attorney who colquired to use. The respondent states that he lects money for his client and refuses, withsent to his client a statement of account con- out excuse, to pay it on demand, is guilty of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

such a breach of professional duty as cannot be disregarded or lightly passed over.

The respondent will be suspended from practice as an attorney for one year and until he shall be permitted to resume practice by the further order of the court. Respondent suspended.

(245 111. 316)

to be included in the district, and their lands shall be treated and taxed like other lands in the of the decision of the commissioners on the ques district, but making no provision for a review tion whether the outlying lands have been connected with the ditches of the district, such fact is jurisdictional of the right of the commissioners to include and tax such lands, and may therefore be determined on quo warranto.

[Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 4; Dec. Dig. § 3.*]

PEOPLE ex rel. WILCOX et al. v. BARBER 5. QUO WARRANTO (§ 48*) INFORMATION

et al. (No. 9471.)

1. QUO WARRANTO (§ 48*) FORMATION-ALLEGATIONS.

OFFICE OF IN

JOINDER OF PARTIES.

duplicity.

Where lands of several owners outside a (Supreme Court of Illinois. Oct. 16, 1914 Re- drainage district held separately had been inhearing Denied Dec. 3, 1914.) cluded within the district, and the owners sought to question the right of the commissioners to incorporate the lands in the district, an informaSince the office of an information in the large number of the landowners joined, each tion in the nature of quo warranto in which a nature of quo warranto is not to tender an is- charging that his land had been unlawfully insue of fact, but merely to call on defendants included in the district, was not objectionable for general terms to show by what warrant they are exercising the privilege claimed, it is sufficient to allege generally that they are exercising such privilege without lawful authority, and hence, in an information against the commissioners of a drainage district to ascertain by what right they had annexed relator's land to the district, it was not necessary to allege that the commissioners acted fraudulently, though that might be the only ground on which their act could be set aside.

[Ed. Note. For other cases, see Quo Warranto, Cent. Dig. §§ 49-52, 59, 60; Dec. Dig. § 48.*

For other definitions, see Words and Phrases, First and Second Series, Quo Warranto.] 2. QUO WARRANTO (S$ 48, 50*)-PLEA.

Where the people brought quo warranto against drainage commissioners to ascertain by what authority they had included relator's land in the district, the people were not required to set out in the information any specific facts on which to base the charge that defendants had acted without lawful authority, but it was defendants' duty in their plea either to disclaim or justify, and, if they justified, to set out such facts as would refute the charge that they had exercised the privilege complained of without lawful authority.

[Ed. Note. For other cases, see Quo Warranto, Cent. Dig. §§ 49-52, 53-55, 59, 60; Dec. Dig. 88 48, 50.*]

[Ed. Note.-For other cases, see Quo Warranto, Cent. Dig. §§ 49-52, 59, 60; Dec. Dig. § 48.*]

6. DRAINS (§ 15*)-Drainage DISTRICT-OUTLYING LANDS-DITCHES-CONNECTION WITH DISTRICT DRAINS.

Farm Drainage Act (Hurd's Rev. St. 1913. c. 42, § 117) § 42, provides that the owners of lands outside drainage districts may connect with the district ditches by the payment of such amount as they would have been assessed if originally included in the district, and if individnect, they shall be deemed to have voluntarily ual landowners outside the district shall so con

applied to be included in the district, and their lands benefited by such district shall be treated, classified, and taxed like other lands within the district. Held that, to establish that a tract of outlying land has been connected with district ditches, it is not sufficient to show that waters from such tract ultimately pass into and through the district ditches, but it must be further shown that an artificial ditch has been constructed leading from the land in question directly into the district ditch or into some ditch which has been theretofore artificially connected with the district ditch.

[Ed. Note.-For other cases. see Drains, Cent. Dig. §§ 7-10; Dec. Dig. § 15.*]

Appeal from Circuit Court, Christian

3. DRAINS (8§ 18*)-FARM DRAINAGE-ANNEXA- County; J. C. McBride, Judge. TION OF LAND-STATUTES.

Farm Drainage Act (Hurd's Rev. St. 1913, c. 42, § 117) § 42. provides that the owners of land outside the drainage districts may connect with the ditches of the district already made, and if they shall so connect they shall be deemed to have voluntarily applied to be included in the district, and their lands benefited by such drainage shall be treated, classified, and taxed like other lands within the district. Held, that the annexation of lands to a drainage district by the drainage commissioners can be attacked in a quo warranto proceeding only on the ground

that such lands had not been connected with the district ditches, and it was therefore not necessary for the people either to allege or prove that the commissioners acted fraudulently.

[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. § 18.*] 4. QUO WARRANTO (§ 3*)-DRAINAGE DISTRICT -ANNEXATION OF LAND-CONNECTION WITH DRAINS DETERMINATION AS TO AUTHORITY. Under Farm Drainage Act (Hurd's Rev. St. 1913, c. 42, § 117) § 42, providing that owners of land outside drainage districts may connect with the ditches of the district, and if they do so they shall be deemed to have applied

Proceeding in the nature of quo warranto by the People, on the relation of W. O. Wilcox and others, against William Barber and others. From a judgment in favor of defendants, relators appeal. Reversed and re

manded.

Harry B. Hershey, State's Atty., of Taylorville, Brown & Burnside, of Vandalia, and John E. Hogan, of Taylorville, for appellants. Taylor & Taylor, of Taylorville, for appellees.

COOKE, J. This was a proceeding in the

nature of quo warranto, brought in the cir cuit court of Christian county against the commissioners of Union drainage district No. 1 of the towns of Pana and Assumption, in Christian county, to test the legality of the annexation by the commissioners of certain lands to said district. The information was filed by the state's attorney of Christian

[3] We are of the opinion, however, that the legality of the annexation of the lands of relators to the district can be attacked in this proceeding solely on the ground that such lands have not been connected with the ditches of the district and that it is not necessary for the people to either allege or prove fraud. The pleas filed by the defendants, as well as the proof, show that the annexation of the lands of relators was made under and by virtue of section 42 of the Farm Drainage Act (Hurd's Rev. St. 1913, c. 42, § 117), which provides that:

county upon the relation of W. O. Wilcox [2] The people are not required to set out and M. Hutchins, two of the owners of land in the information any specific facts upon attempted to be annexed to the district, and which to base the charge that the defendants attacked the legality of the annexation of are exercising a certain privilege without the relators' lands and the lands of more lawful authority, but the defendants must, than 50 other persons whose names and a in their plea, either disclaim or justify, and description of the lands owned by each were if they justify they must set out such facts set forth in the information. Thereafter, by as will refute the charge that they are exleave of court, an amended information was ercising the privilege complained of without filed upon the relation of all the owners of lawful authority. People v. Central Union land mentioned in the original information. Telephone Co., 232 Ill. 260, 83 N. E. 829. In other respects the amended information is substantially the same as the original information and questions the legality of the annexation of the same lands. The defendants demurred to the amended information; one of the special grounds of demurrer being that it is double, in that it charges the defendants with 62 separate and distinct usurpations. The demurrer was overruled, and the defendants filed pleas justifying their action in annexing said lands to the district on the ground that the relators had connected their lands with the ditches of the district, and had thereby, by virtue of the statute, applied to be included in the district, and that the defendants had thereafter, as required by statute, annexed said lands to the district and classified the same for the purpose of making assessments thereon. A replication denying that the relators had connected their lands with the ditches of the district was filed, and the cause proceeded to trial before a jury upon the issue thus made. After hearing the evidence and viewing the premises in controversy the jury returned a verdict finding the defendants not guilty. A motion for a new trial was made and overruled, and judgment was rendered in favor of the defendants. This appeal has been prosecuted from that judgment.

Before proceeding to consider the grounds relied upon by appellants for reversal, it is necessary to dispose of the cross-errors assigned by appellees.

"The owners of land outside the drainage districts * may connect with the ditches of

the district already made, by the payment of such amount as they would have been assessed if originally included in the district," and "if individual landowners outside the district shall so connect they shall be deemed to have voluntarily applied to be included in the district, and their lands benefited by such drainage, shall be treated, classified and taxed like other lands within the district."

[4] In People v. Drainage Com'rs, 143 Ill. 417, 32 N. E. 688, it was said:

"No appeal is allowed by the statute from the classification of the lands of the relators, or from the determination of the commissioners to classify them, and the right to classify and assess them being dependent, not upon any order of the commissioners, but upon the fact of connection with the ditches of the district, that warranto. That fact is jurisdictional, and withfact was properly before the court upon quo out it exists, the proceedings of the commissioners in respect of classifying or assessing the land are without authority of law."

In Shanley v. People, 225 Ill. 579, 80 N. E. 277, following previous decisions of this court, we held that the determination by commissioners that lands lying outside a drain

[1] It is first urged by appellees that the amended information is fatally defective because it does not charge that the commissioners acted fraudulently in annexing the lands of the relators to the drain- age district had been connected with the age district. This contention is necessarily the result of a misconception of the office of an information in the nature of quo warranto. If it be conceded that the action taken by the commissioners in annexing the relators' lands to the district could only be attacked on the ground that the commissioners acted fraudulently, still it would not be necessary to allege fraud in the information. The office of an information in the nature of quo warranto is not to tender an issue of fact, but merely to call upon the defendants, in general terms, to show by what warrant they are exercising the privilege claimed, and it is sufficient to allege generally that they are exercising the same without lawful authority.

ditches of the district "can only be reviewed in a direct proceeding by quo warranto," clearly recognizing the right of landowners whose lands have, under section 42, supra, been annexed to the district by the commissioners to have the question whether their lands have been connected with the ditches of the district determined as one of fact in a proceeding in the nature of quo warranto, irrespective of the question whether the commissioners acted fraudulently in assuming jurisdiction over such lands. The statute makes no provision for a review of the decision of the commissioners upon this question of fact, and it is too well established to require discussion that the landowners are entitled to their day in court.

Moreover, appellees are not now in a posi-lators to the drainage district. There is no tion to question this action of the court, because by pleading to the information they waived their demurrer, and cannot now assign error upon the action of the court in overruling the demurrer. Beer v. Philips, Breese, 44; Nordhaus v. Vandalia Railroad Co., 242 Ill. 166, 89 N. E. 974.