DESCENTS. WIDOW AS HEIR OF HER HUSBAND. Continued.

2. Effect of the act of 1847 upon the rights of the widow in that respect.
The act of February 11, 1847, entitled, "An act to amend an act con-
cerning wills," was not intended to abridge the rights of the widow as
an heir under the statute of descents, but to enlarge her dower rights,
and did not operate to repeal the 46th section of the statute of wills,
which prescribes the contingencies upon which the widow may become
the heir of her husband. Rawson et al. v. Rawson et al. Exrs. 62.

3. Merely because there may be an inconsistency. between the act
of 1847, in its provisions respecting the widow, and the statute of
descents of 1845, will not authorize the construction that the latter was
repealed by the former by implication, inasmuch as the two acts are
not on the same subject, the subject of the act of 1847 being the
widow's dower, while that of the act of 1845 is not dower, but inherit-
ance. Ibid. 62.

DESCRIPTION.

DESCRIPTION OF LAND IN A DEED.

1. In describing lands in a conveyance, no set form of words is
required, but only such language as clearly designates the lands con-
veyed. Bowen et al. v. Prout, 354.

2. A deed described the lands conveyed as follows: "The following
tracts or parcels of land, all of which lying and being in the military
tract in the State of Illinois, that is to say, the northwest section 27,
11 S. 2 W." following with the numbers of several other tracts, describ-
ing them thus: "N. E. 17, 15 N. 6 E." without the use of the word
"section" preceding the quarters. The description of the tracts suc-
ceeding the first one was sufficient; the word "section" would be
understood, as though it were expressed, before the numerals repre-
senting all the other quarters. Ibid. 354.

IN A POLICY OF INSURANCE.

Description of an interest in a trustee. See INSURANCE, 10.

DIRECTORS OF RAILROADS.

OF THEIR COMPENSATION. See RAILROADS, 2

DISCRETIONARY.

WHAT MATTERS ARE DISCRETIONARY.

1. To give or refuse an instruction embodying merely abstract princi-
ples. See INSTRUCTIONS, 1.

2. Entering return on process-discretionary. See PROCESS, 5.

DISMISSAL OF SUIT.

WHAT AMOUNTS TO A DISMISSAL.

A decree for alimony will operate as dismissal of another suit pend-
ing, brought by a feme covert, under the act of 1867, for separate main-
tenance. Harper et al. v. Rooker, 370. See DIVORCE AND ALI-
MONY, 1.

DIVORCE AND ALIMONY.

SUIT FOR SEPARATE MAINTENANCE.

1. Effect of a subsequent decree for alimony. Where a married
woman has commenced a suit against her husband, for separate main-
tenance, under the act of 1867, and pending such suit obtains, in another
suit, a decree for a divorce, and for alimony, the decree for alimony
will operate as a dismissal or discontinuance of the former suit, without
any formal order disposing of it. Ibid. 370.

ALIMONY.

2. Out of what fund alimony may be decreed. So, where the wife,
upon commencing her suit for separate maintenance, caused her hus
band to be arrested under a writ of ne exeat, and to give bond, and cer-
tain United States securities belonging to the husband were placed in
the hands of the surety on the ne exeat bond as an indemnity therefor,
and to secure the attorney's fees in that suit and a suit for divorce
also then pending, it was proper for the court, in decreeing alimony in
the latter suit, at the instance of the wife, to direct the surety on the ne
exeat bond to pay over to her, as a portion of her alimony, the residue
of the securities held by him as an indemnity, after deducting the
attorney's fees therefrom, although the former suit was not formally
disposed of by any order therein, because the surety could not be held
liable upon his bond after the decree for alimony, nor could any fur-
ther proceedings be had in the suit for separate maintenance. Ibid. 370.

DURESS.

WHAT SUFFICIENT TO AVOID A CONTRACT.

1. Where a party having a warrant for an arrest, threatens to exe-
cute it unless the person against whom the warrant was issued enters
into a certain contract, that has been held sufficient duress to avoid the
contract. Bane et al. v. Detrick, 20.

2. And even though the arrest would have been illegal, because the
warrant was issued by a justice of the peace in one State for an offense
committed in another State, yet the contract being executed under the
threat of an arrest under it, if the threat was of such a character as to
terrify a man of ordinary and reasonable firmness, duress would be
established and the instrument held void. Ibid. 20.

EASEMENTS.

SURFACE WATERS.

Of an artificial drain as an easement upon adjacent lands. See SUR-
FACE WATERS, 5.

EJECTMENT.

OUTSTANDING TITLE.

1. Effect of the plaintiff showing an outstanding title, upon his right of
recovery. A defendant may protect his possession, in an action of
ejectment, by showing an outstanding title. And so, if a plaintiff intro-
duces proof of title in a third person, with which he fails to connect
himself, such proof will be fatal to a recovery. Ballance v. Flood, 49.

ERROR.

ERROR WILL NOT ALWAYS REVERSE. See PRACTICE IN THE
SUPREME COURT, 3, 4.

ESTOPPEL.

DENIAL OF AGENTS' AUTHORITY.

When one dealing with the agent is estopped therefrom. See AGENCY, 5

EVIDENCE.

PAROL EVIDENCE.

1. To correct a mistake in recording a deed. In an action of ejectment,
a party offered in evidence a certified copy from the record of a deed,
which appeared to have been signed by “James H. Turrill," instead of
"Samuel H. Turrill:" Held, it was competent for him to show by extrin-
sic evidence, that the deed was in fact executed by Samuel H., and that
the error occurring in the christian name in the copy, was the mistake
of the recorder in transcribing the original upon the record. Nixon v.
Cobleigh, 387.

And had the origi-

2. Explaining mistake in the execution of a deed.
nal deed itself been produced, signed as this purported to have been, it
would have been proper to show, by parol evidence, that the grantor
executed it by the name of "James," instead of "Samuel," his true
name. Ibid. 387.

3. To explain a written contract. A vendor of certain lots of land
signed a memorandum, in writing, as follows: "Chicago, June 20th,
1868, received of James-Redican, to apply on the purchase of lots 14
and 15, block 15; 12 and 13, block 16, bought of B. F. Fowler, one
hundred dollars. Price of four lots, $1170.33. If lots are not in loca-
tion as represented, money to be returned to J. Redican at his option."
The purchaser went into possession under the agreement, and made

valuable improvements: Held, in a suit by the vendee to enforce the
specific performance of the contract, that from the incompleteness of
the memorandum in itself, in expressing all the conditions of the con-
tract, and the location of the lots, it was evidently the intention of the
parties to reserve the right to supply its deficiencies by parol proof, and
it was, therefore, competent for the vendee to show by parol the char-
acter of deed to be made, when the contract was to be executed, and
the description and location of the lots, without asking a reformation
of the instrument. Fowler v. Redican, 405.

4. Moreover, as the partial execution of the contract by the pur-
chaser, through his possession and improvements, and payment of part
of the purchase money, would have enabled him to enforce its specific
execution had it rested entirely in parol, so, this instrument not pur-
porting to express the entire agreement of the parties, could be made
complete by parol evidence of those matters which were omitted.
Ibid. 405.

5. But it seems, where the contract on its face appears to be com-
plete in itself, but misdescribes the property sold, parol evidence would
not be admissible to correct such misdescription, except in a proceed-
ing in equity to reform the instrument. Ibid. 405.

6. Payment of taxes. It is the settled rule of this court, that pay-
ment of taxes may be proved by parol, and receipts therefor may be
explained or contradicted. Elston et al. v. Kennicott et al. 272.

SECONDARY EVIDENCE.

7. Certified copy of deed-proper foundation for the same-under the
statute. In an action of ejectment, the plaintiff swore "that he did not
have the deed in his possession; that he did not know where it was and
had not made search for it:" Held, that this proof established either
alternative presented under the statute-loss, or want of power over
the instrument and was sufficient, as a foundation, for reading in evi-
dence a certified copy from the record. Nixon v. Cobleigh, 387.

8. The express object of our statute, was to modify the strictness of
the common law rule, as to the admission of certified copies of lost instru-
ments; and to give it a rigid construction, would virtually defeat the
design of the legislature. Ibid. 387.

9. Of a mistake in the record. And when, in such case, a party offered
in evidence a certified copy of a deed, which appeared to have been
signed by "James H. Turrill," instead of “Samuel H. Turrill,” it was
competent for him to show by extrinsic evidence, that the deed was in
fact executed by Samuel H. and that the error occurring in the chris-
tian name in the copy, was the mistake of the recorder in transcribing
the original upon the records. Ibid. 387.

Continued.

EVIDENCE. SECONDARY EVIDENCE.

10. To prove contents of lost deed. The right of a party to prove the
contents of a lost deed, can not be questioned; and had the original
deed been produced, signed as this purported to have been, it would be
proper to show by parol evidence, that he executed it by the name of
"James" instead of "Samuel," his true name. Nixon v. Cobleigh. 387.

-

11. Proof of contents of instrument — preliminary proof. Proof of
the fact that a mortgagee surrendered to the mortgagor the mortgage
given to secure the purchase money of the chattels embraced therein,
under an agreement that the property should be returned, after proving
that such a mortgage had been executed, is sufficient to let in parol evi-
dence of the contents of the mortgage, on behalf of the mortgagee, in
a suit between him and a third person concerning the title to the mort-
gaged property. Huls v. Kimball, 391.

12. By whom the contents may be proved. When secondary evidence
is admissible to prove the contents of a mortgage, such contents may be
proven by any one who can swear he knew them. The mortgagee is
quite as competent as the mortgagor for that purpose. Ibid. 391.

13. And it is sufficient to enable a witness to testify to the contents
of an instrument, where he states that he saw it signed, had it in his
possession more than a year, and knew its contents, without stating
that he had read it. Ibid. 391.

BURDEN OF PROOF.

14. As to title of property-in replevin. In an action of replevin,
under a plea of property in the defendant, or a third person, traversing
the plaintiff's right, the burden of proof as to the title to the property
is upon the plaintiff. Chandler v. Lincoln, 74.

15. But where the plea is property in the defendant or a third person,
without a traverse of the plaintiff's right, it leaves the burden of proof
upon the defendant to establish the truth of his plea. Ibid. 74.

16. Where a garnishee answers that the note he owed the attachment
debtor had been sold-burden of proof as to the good faith of the transfer.
See GARNISHMENT, 2.

ADMISSIONS OF RECORD.

17. Obviate the necessity of proof. Whatever is admitted on the
record of a cause need not be proved; so where a plea admits the inter-
est of a beneficial plaintiff in the subject matter of the suit, such inter-
est need not be proved, in the event it becomes necessary that the fact
should appear. Boynton v. Phelps et al. 210.

ANSWER IN CHANCERY.

18. When not evidence. An answer in chancery not sworn to, or
even if sworn to, the oath being waived in the bill, is not evidence.
Hopkins v. Granger et al. 504.