and as one of the executors of the will of | personal representatives of the deceased, but Alanson D. Smith, and filed a plea alleging that such personal representatives may be that she was a resident of Grundy county summoned and the cause proceed as if it had and was served with process there and not been originally commenced against him. This in Cook county; that her coexecutor, Edward section does not apply to the present case R. Smith, was a resident of Will county; where there were several defendants, but that Alanson D. Smith died more than a year this case is within the terms of section 12, after the cause of action accrued; that he which provides that where there are several lived in Grundy county at the time of his defendants in an action the cause of which death, and that his death was brought to the survives, and any of them died before final attention of the court before the plaintiff judgment, the action shall not abate, but dismissed his suit as to the People's Gaslight upon the suggestion of such death the cause & Coke Company. The plea concluded with may proceed against the surviving defenda prayer for judgment if the court would ants as if they had been originally the only take cognizance of the action. A demurrer defendants. to the pleas was overruled and the plaintiff elected to abide by his demurrer. The court dismissed his suit and the plaintiff appealed. The Appellate Court affirmed the judgment and granted a certificate of importance and appeal.

[1] We have held that a suit for negligence in causing death may be sustained by an administrator against the personal representa tive of the person whose negligence caused the death. Devine v. Healy, 241 Ill. 34, 89 N. E. 251. The cause of action does not abate by the death of the defendant. If Alanson D. Smith was liable, in his lifetime, for negligently causing the intestate's death, a suit could be maintained against his executors if brought within the time limited by the law.

[2] The question is not, however, whether the appellant could maintain maintain an action against the appellee, but is whether the particular action pending against the testator at his death could be revived. That the action was originally properly brought and a joint judgment could be recovered against both defendants if both were guilty of the wrong is admitted; and it is equally clear that after Smith's death no joint judgment could be rendered against his personal representatives and the other defendant. Tandrup v. Sampsell, 234 Ill. 526, 85 N. E. 331, 17 L. R. A. (N. S.) 852.

The death of one of several defendants, at common law, abates the suit as to him. The statute provides that the action shall not abate but may proceed against the surviving defendants. It does not provide that it may proceed against the executors. The joint liability is severed by the death of one of those jointly liable; but the statute preserves the action upon the joint liability against those who survive. The separate liability of the deceased person may be enforced in a separate action against his representatives. The same principle prevails in section 13, which provides that in case of the death of all the joint defendants the cause may proceed against the representatives of the last surviving defendant. By the death of Smith his liability was severed and his representatives might be proceeded against in a separate action, but the statute preserved the pending action against the surviving defendant. The matter is wholly statutory. If the statute saved the pending action it was saved, otherwise not; and as to the administrator or executor of a deceased codefendant the statute does not save the action.

found.

[4] Various formal objections are made to the plea, but in its commencement, conclusion, and substance it is substantially the same as the plea in the case of Scott v. Waller, 65 Ill. 181, which was held to be a good plea. It is a plea in abatement claiming the [3] At common law a cause of action for defendant's privilege not to be sued out of an injury to the person did not survive to the county where she resides or may be the plaintiff or against the defendant. If the action survives in this case it must therefore be by reason of some statute. Even if the cause of action survives, the method of its enforcement is subject to control by legislative enactments, and sections 11, 12, and 13 of the Abatement Act provide the manner in which an action may be prosecuted where one or more of the parties have died but the cause of action survives. Section 11 deals with the case where there is but one defendant to the action, and provides that in case of his death the suit shall not abate if it might have been prosecuted against the

[5] It was not subject to the charge of duplicity in alleging the facts which show that the action did not survive against her as executor, because those facts were necessary to make the plea good. If the action survived, section 25 of the Abatement Act authorized the issue of summons to any county in the state, and it was essential to a good plea that it should negative such authority.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

It was not error, as unduly limiting the right [1] The testimony of the eyewitnesses to of self-defense, to instruct that before accused the shooting is conflicting. Of the witnesses could avail himself of that right it must appear that at the time and immediately before the who testified on behalf of the people, two killing the danger was so urgent and pressing stood talking together about 100 feet away.

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of the people told the jury, in substance, that if they believed from the evidence, beyond a reasonable doubt, that the plaintiff in error unlawfully, feloniously, and with malice aforethought caused the death of Papandrea, then he is guilty of murder, and the jury should so find. It is insisted that these instructions are erroneous, for the reason that they did not leave the jury free to return a verdict of manslaughter should the evidence disclose mitigating circumstances sufficient to reduce the killing to that crime. These instructions recited every essential element necessary to constitute the crime of murder and directed the jury to find the defendant guilty of murder if they believed the facts recited to have been proved beyond a reasonable doubt. It was not error to give them. Crowell v. People, 190 Ill. 508, 60 N. E. 872; Carle v. People, 200 Ill. 494, 66 N. E. 32, 93 Am. St. Rep. 208; Kyle v. People, 215 Ill. 250, 74 N. E. 146; Koser v. People, 224 Ill. 201, 79 N. E. 615; Bleich v. People, 227 Ill. 80, 81 N. E. 36; People v. Terrell, 262 Ill. 138, 104 N. E. 264.

One of these testified that he heard three [2] Two of the instructions given on behalf shots, looked up, and saw plaintiff in error running away; that Papandrea fell, then took his pistol from his side, and fired two shots at plaintiff in error. The other testified that he was looking directly toward plaintiff in error and deceased when the shooting began; that plaintiff in error fired three shots, Papandrea fell, then pulled his pistol from his pocket, and fired two shots at the plaintiff in error. Two others were standing between 300 and 400 feet away. Each of them testified that he heard three shots, then looked up, saw plaintiff in error run away and Papandrea fall; that after he fell Papandrea raised up and fired two shots. One witness called on behalf of plaintiff in error testified that he was within 15 or 20 feet of the parties when the shooting occurred and that he saw all that happened; that plaintiff in error shot Papandrea; that Papandrea fell and then pulled his pistol from his pocket and fired two shots. On the other hand, plaintiff in error and two witnesses, who were within 15 feet when the shooting occurred, testified that Papandrea pulled his gun from his pocket; that it was set on safety, and he was unable to fire it, although he attempted to do so; that plaintiff in error then drew his pistol from his pocket, fired three shots at Papandrea, who fell, and who then fired two shots at plaintiff in error as he ran away. Another witness called on behalf of plaintiff in error testified that he also was about 10 or 15 feet away, and that, when plaintiff in error fired, Papandrea had his hand in his pocket, but later in his examination witness said that he did not see whether deceased pulled his pistol out before or after he was shot. Plaintiff in error ran from the scene, throwing his pistol away as he ran. When he had gone about a quarter of a mile, one of the officials of the village halted him and placed him under arrest. The officer asked him where his gun was, and he replied that he never had one.

The jury were fully and correctly instructed as to the law of self-defense and as to the right of plaintiff in error to protect himself and defend against any assault with which he was threatened. If plaintiff in error and the two witnesses who corroborated him were telling the truth, then the jury should have found that the killing was justified. On the other hand, if the witnesses on behalf of the people and the one witness called on behalf of plaintiff in error who stated that plaintiff in error fired before any assault was made or threatened against him testified to the truth, then the jury were justified in finding the plaintiff in error guilty of murder. This is a case where it was peculiarly the province of the jury to determine the weight and credibility to be given to the evidence of the various witnesses. We are unable to say from this record that the verdict of the jury finding the defendant guilty of murder was con

[3] The twenty-first instruction given on behalf of the people was as follows:

"The jury are instructed that before the defendant, James Sinnot, can avail himself of the right of self-defense, it must appear that at the time and immediately before the killing the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm the killing of the deceased, Mike Papandrea, was absolutely necessary or apparently necessary, and it must also appear that the deceased, Mike Papandrea, was the first assailant, or that the defendant, James Sin. not, had in good faith endeavored to decline rther struggle before the mortal shot was fired."

It is insisted that this instruction in effect tells the jury that the danger must be actual, urgent, and pressing before one is warranted in acting in self-defense; whereas, under the law, there need not have been any real danger at all, but it is sufficient if plaintiff in error in good faith believed there was danger of losing his life or receiving great bodily harm. Instruction No. 22 contained the same language complained of in instruction No. 21. In Davison v. People, 90 Ill. 221, an instruction almost in the exact language of people's instruction No. 21 was ap、 proved. That case has been consistently followed, and under that holding these instructions were properly given.

Complaint is made that the court erred in refusing to give instructions numbered 1 and 3 offered on the part of plaintiff in error. These instructions were drawn to state the law of self-defense. The jury were instructed correctly and fully as to the law of selfdefense, and the portions of the refused instructions which were proper to be given were amply covered by the instructions given. They were therefore properly refused.

Complaint is made of the modification of

abstract does not disclose that the court made, was never filed for record. After the death any modification of this instruction, and it of Hannah Garrett, her husband and chilappears to have been given as asked. There being no error in the record, the judgment of the circuit court is affirmed. Judgment affirmed.

(274 Ill. 178)

BUTLER et al. v. GARRETT et al.
(No. 10698.)

(Supreme Court of Illinois. June 22, 1916.)
63(3) -OWNERSHIP EVI-

dren continued to reside upon the premises until the marriage of the daughters, who, as they were married, left the farm and lived in homes of their own. The three sons continued with their father to use and occupy the land until Harrison Garrett, the oldest son, was married. Soon after that event Bailey Garrett, during the years 1901 and 1902, conveyed to Harrison Garrett 45 acres of the

land, to Frank and George Garrett 65 acres, and to Sarah Butler and Mary Lovellette,

1. PARTITION DENCE-SUFFICIENCY. Testimony of G. that he had transferred two of the appellants, the remaining 10 lands to C., corroborated by a deed from C. to acres, reserving to himself a life estate in wife of G., held sufficient to support a finding forty acres. He continued to live with his that wife of G. at her death was the owner, and that subsequent deeds by G. to others were in- son Harrison and his wife for a short time, and then went to live with his youngest son, George, who was married and lived several miles from the farm. He lived with George

valid.

[Ed. Note.-For other cases, see Partition, Cent. Dig. § 185; Dec. Dig. 63(3).]

While declarations of a grantor in disparagement of title are incompetent against his grantee, his testimony as to facts material to the conveyance are admissible.

MON.

2. EVIDENCE 230(3)-CONVEYANCE-DECLA- about ten years, and in August, 1914, went RATIONS OF GRANTOR DISPARAGEMENT OF to live with his daughter Mary Lovellette, TITLE-TESTIMONY. with whom he remained until he died, on November 30, 1915, during the pendency of this suit. On November 5, 1915, he, together with his five daughters, filed the bill [Ed. Note.-For other cases, see Evidence, in this case, which alleged the execution of Cent. Dig. §§ 837, 838, 846; Dec. Dig. 230(3).] the deed from Bailey Garrett and his wife 3. TENANCY IN COMMON 15(1)-PRESCRIPTION-ACTIONS BETWEEN TENANTS IN COM-to Wilbur Compton and asked to have it restored and ordered recorded, and also prayed that the various deeds executed by Bailey Garrett should be set aside, that dower should be assigned to him, and that partition should be made of the premises. The defendants by their answer denied the execution and delivery of the deed to Wilbur Compton, and relied upon the deeds of Bailey Garrett and upon the statute of limita-. tions and their possession and payment of taxes. The death of Bailey Garrett having been suggested, the cause proceeded in the name of the survivors.

Statute of limitations is not available to a party against his tenants in common so as to divest them of their title to land.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 42, 48: Dec. Dig. 15(1).]

Appeal from Circuit Court, Wabash County; J. C. Eagleton, Judge.

Bill for partition by Sarah Butler and others against Harrison Garrett and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

P. J. Kolb and M. J. White, both of Mt. Carmel, for appellants. H. M. Phipps, of Mt. Carmel, for appellees.

DUNN, J. The complainants in a bill for partition in the circuit court of Wabash

The important question in the case is whether Bailey Garrett and his wife executed and delivered to Wilbur Compton a conveyance of the premises on March 8, 1878. the premises in question; if they did not, If they did, Hannah Garrett died seised of the title remained in her husband and would be conveyed by his deeds. Bailey Garrett's deposition was taken on November 12, 1915. He was then nearly 82 years old, in very feeble health, and almost blind. He testi

county have appealed from a decree dismissing their bill and finding the defendants to be the owners of the property involved. Hannah Garrett died in October, 1884, leaving Bailey Garrett, her husband, surviving her, and five daughters, who are the appellants, and three sons, who are the ap-fied that he deeded the land to Wilbur Comppellees, her heirs. For a number of years before her death the family lived upon a farm of 120 acres, which is the property involved in this suit. The title prior to March 8, 1878, was in Bailey Garrett. On that day a deed conveying the property to Hannah Garrett was executed by Wilbur Compton and was recorded. It is the claim of the complainants that on the same day a deed of the same premises was executed by Bailey Garrett and Hannah Garrett, his wife, to Wilbur Compton, which was delivered but

ton 36 or 37 years ago; that he and his wife both signed the deed; that Wilbur Compton made a deed back to his (Garrett's) wife, Hannah, of the same land that Garrett and his wife conveyed to him; that both deeds were made on the same day; and that his wife lived 5 or 6 years afterward. He said he could not tell whether Compton ever had the deed or not; that they all went together, and he did not know whether Compton had the deed or he had; that he did not know who took the deeds down. No one else who

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