2. Of guardians and minors. A guardian or minor cannot assign the widow her dower in the lands of her husband, so as to bind the minor on arriving at age; and cannot, therefore, be in default in not making such assignment, if demanded. Bonner et al. v. Peterson, 254. ✓
IN WHAT THE WIDOW HAS DOWER.
3. Of lands condemned for public use—the right exists in the money paid therefor. Where lands are condemned for public improvements, the assessment of the damages therefor, unless a contrary appears, satisfies all the title to the property, including the fee simple and all lesser estates; and the widow having dower in the land appropriated by a city to pub- lic use, must in equity be held to have dower in the proceeds paid in sat- isfaction of the judgment against it, as damages for such appropriation. Ibid. 254.
OF THE MODE OF ASSIGNING DOWER.
4. Of a decree allowing dower in gross. And, in such case, the heir being an infant, the court may, if deemed for the interest of the heir, order the fund to be invested in other real estate, and endow the widow with one-third thereof for life, and have it allotted to her, the same as if the husband had been seized of it in his life-time; or endow her of the legal interest on one-third of the proceeds for life, to be paid annually, in such case, providing ample security of the principal and the payment of the interest punctually, and payment of the principal to the heir, at the death of the dowress; and the decree may be made a specific lien on the remaining real estate, to render this annual payment, less the taxes. But, in the absence of legislative authority, it is a matter of doubt, whether a decree for a gross sum can be rendered without the consent of all parties. If so, it should not be done, unless there are no means of securing to her the payment of an annual sum equal to one-third of the rents and profits of the fund in which she is dowable. Ibid. 254.
OF DAMAGES FOR NOT ASSIGNING DOWER.
5. And herein, of a demand of dower. Where a party capable to act refuses to assign the widow her dower, upon demand so to do, he is in default, and the widow is entitled to damages from the date of such demand and refusal. Ibid. 254.
6. The commencement of a suit for dower is a legal demand therefor, and when commenced against a minor heir, it is such a demand as con- templated by law, and from that time the widow will be entitled to dam- ages for withholding dower. Ibid. 254.
7. Where two suits have been brought for dower, and the decree in the suit first brought has been set aside as erroneous, the widow is only enti tled to damages from the time the last proceedings were instituted. Ibid. 254.
DOWER. Continued.
MEASURE OF DAMAGES.
8. For failure to assign dower. In such case, the measure of damages is usually the net profits, or income, of one-third of the estate in which the widow has dower. Bonner et al. v. Peterson, 254.
9. Net profits-how ascertained. To ascertain the net profits, the neces- sary repairs of the premises from which the fund is derived, as well as the taxes, and necessary insurance on the same, should be deducted from the gross receipts of the rents and profits. Ibid. 255.
10. Measure of damages in this case. In this case the widow had obtained a decree for dower, which was procured to be set aside by the heirs, who were in possession; and a portion of the premises had been condemned by the city of Chicago for a street; and the damages therefor paid to the heirs in bonds and money. In a second suit by the widow for dower, it was held, for the delay in assigning the dower, the heirs should be required to account for one-third of the net proceeds of the rents and profits derived from the real estate in which the widow was dowable received from the commencement of the second suit by her, also for one- third of the interest received on the fund derived from the city which remains after paying the debts of the estate, and the expenses incurred in the suit against the city, and the taxes paid on the money or bonds, if any, yielding such interest. Ibid. 255.
OF DEFENSES BY THE HEIRS.
11. Where a widow has obtained a decree for dower, which she assigned, and afterward it was set aside at the instance of the heirs, they cannot set up the assignment of such decree as a bar to the claim for dower in a subsequent proceeding. Ibid. 254.
12. Nor can the heirs urge the rights of such assignee, as an excuse for refusing to assign the widow her dower. Ibid. 254.
13. Until the heirs can show, either an assignment of dower to the widow or a release by her, they cannot set up, as a bar to her dower, what another may have paid her for such right. Ibid. 254.
CONTINGENT RIGHT OF DOWER.
14. Of the rights in respect thereto as between the husband and his vendee. See CHANCERY, 8, 9.
15. As an incumbrance. While the husband lives, the wife's contingent right of dower in land sold by him, is not an incumbrance thereon. Hum- phrey v. Clement, 301.
EJECTMENT BY A MORTGAGOR.
1. When the right of action accrues. A mortgagor cannot maintain ejectment where the title, entry and ouster in the declaration are laid before the date of extinguishment of the mortgage debt. In such case the right of possession only accrues after extinguishment of debt. Holt et al. v. Rees, 30.
EJECTMENT. Continued.
CONVEYANCE BY PLAINTIFF PENDENTE LITE.
2. Its effect on the right of recovery. Under our statute, a conveyance of plaintiff's title to a third person, pending suit, does not defeat his right of recovery. In such case the recovery in ejectment inures to the benefit of the grantee of the plaintiff. Mills v. Graves, 50.
3. Construction of the statute. The 25th section of the chapter on eject- ment, which provides that if the title of the plaintiff expires, pending the suit, no recovery shall be had, applies to cases where the plaintiff claims an estate for years or for the life of another; but has no application where the plaintiff merely conveys his title to another pending the suit. Ibid. 50.
ELECTIONS.
REFUSING A VOTE.
1. Liability of judges of election. By the act of 1849, the right of action is given only when the vote of a qualified elector has been rejected. Mills et al. v. McCabe, 194.
2. What courts have jurisdiction thereof. See NATURALIZATION.
Effect of a conditional removal from the State, and return. OFFICE, 1.
1. If a party does not abide by his demurrer he cannot avail on error of any defect in the pleading. Camp et ux. v. Small, 37.
HOW AFFECTED BY SUBSEQUENT LEGISLATION.
2. Legalizing a town ordinance after it has been decreed to be invalid. When by a decree of court, a town ordinance was declared invalid, and afterward, by an act of the legislature, the ordinance in question was declared valid, such act made the ordinance valid only from the day of its own passage, and cannot affect the question of error in a decree ren- dered prior to that date. Town of Lake View v. Letz et al. 82. RELEASE OF ERRORS. See PRACTICE IN THE SUPREME COURT, 2. ERROR WILL NOT ALWAYS REVERSE. See same title, 1.
1. M. and wife executed a mortgage upon their homestead without the statutory waiver, and afterward conveyed it to P. subject to the mortgage lien, and which lien formed a part of the purchase price. Held, in a suit to foreclose by the mortgagee, that, P. having obtained the premises by admitting the lien and assuming its payment, he was estopped from set- ting up as a defense the omission of M. and wife to release their home- stead right in the mortgage. Pidgeon v. Trustees of Schools, 501.
2. Estoppels in pais relating to real estate, cannot be made available in a court of law. Blake v. Fash, 303.
What will estop a party to seek a reversal of a judgment or decree. See PRACTICE IN THE SUPREME COURT, 2.
EVIDENCE.
PAROL EVIDENCE.
1. To contradict the date of a deed. Parol evidence is admissible to contradict the date of a deed, as not the date of its delivery, the date of the instrument not being essential to its operation. Blake v. Fash, 303. EXPLAINING A RECEIPT.
2. Of evidence for that purpose. A written receipt is evidence of the highest and most satisfactory character, and, to do away with its force, the testimony should be convincing, and not resting on mere impressions, and the burden of proof rests on the party attempting the explanation. Winchester v. Grosvenor, 425.
3. To prove contents of a deed which had been voluntarily destroyed. Where a party has voluntarily destroyed a written instrument, he cannot prove its contents by secondary evidence, unless he repels every inference of a fraudulent design in its destruction. Blake v. Fash, 302.
4. The general rule is, that the highest and best evidence of which the case is susceptible must be produced. Ibid. 302.
5. In action by a bailor against a bailee. In case of a bailment for hire, as well as when the bailment is gratuitous, where it appears the goods, when placed in the hands of the bailee, were in good condition, and they were returned in a damaged state, or not returned at all, in an action by the bailor against the bailee, the law will presume negligence on the part of the latter, and impose on him the burden of showing he exercised such care as was required by the nature of the bailment. Cumins et al. v. Wood, 416.
6. Admissibility thereof. In an action on the case against a railway company for killing a colt, the defendant, for the purpose of showing that the place where the accident occurred was inside of the limits of the vil- lage of Hinsdale, offered to give in evidence to the jury a map or plat thereof, recorded subsequent to the date of the accident. The court ex- cluded the map on the ground that it had not been recorded at the time of the accident. Held, that the map was proper to show the intent of the owners of the land to dedicate, and the extent of the dedication, and there- fore ought not to have been excluded from the jury. Chicago, Burlington & Quincy R. R. Co. v. Banker, 26.
7. When not admissible. It is a fatal error to allow the plaintiff to introduce in evidence, against the objection of the defendant, the record of a suit to which the defendant was not a party. Whitaker v. Wheeler, 440. ADMISSIBILITY, GENERALLY.
8. Of a report concerning a railroad, made by its president, not under oath. On the trial of the question of the proper valuation to be put upon the property of a railroad company for purposes of taxation, a report, not under oath, made by the president of the company to the stock and bond- holders, having reference, among other things, to the value of the prop- erty of the company, is not admissible in evidence. Chicago & Northwest- ern R. R. Co. v. Board of Supervisors of Boone County, 241.
9. The voluminous character of such a report, in this case, was such that the bearing it had upon the issue before the court would have to be ascertained, if at all, by a careful analysis and dissection, to which a jury would scarcely be able to subject it. Besides, if it contained any state- ments bearing on the issue, they could be proved by witnesses under oath. Ibid. 241.
10. In an action against a city for negligence in failing to place proper guards to secure persons from falling into an excavation in which there was water, whereby a person lost his life, proof of the noxious condition of the water is admissible to show that by reason of its condition the danger to the life of a person falling into it would thereby be enhanced. City of Chicago v. Gallagher, Admx. 295.
11. When admissible. The voluntary admissions of a party, no matter when or how made, if made with knowledge of the circumstances, are proper to be given in evidence. Chicago & Northwestern R. R. Co. v. Board of Supervisors of Boone County, 241.
12. So upon the trial of the question as to the proper valuation to be put upon the property of a railroad company for purposes of taxation, it is competent to give in evidence, in behalf of the party adverse to the com- pany, the deposition of the general superintendent of the road, which had been taken in another case and used by the company, adopting and acting on the statements therein as facts. Ibid. 241.
13. For what purposes to be considered. As a general rule, where ad- missions of a party are received in evidence generally they are proper for all purposes, and should be considered by the jury and receive such weight as they may deem proper to give them. Diversy v. Kellogg, 115. DECLARATIONS.
14. When admissible. In an action of trover against a sheriff to re- cover damages for selling the property of the plaintiff under an attach- ment against another person, the declarations of the defendant in the attachment, while in the apparent possession of the property, as explana- tory of his possession, and in disparagement of any claim in himself, are
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