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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