for his ward in respect to that interest. Where, therefore, a guardian and his ward are tenants in common of land, it is error to decres a par tition between them in a suit brought in the names of the guardian and the infant by such guardian. In such a case, the minor should either be made defendant and have a guardian ad litem, or should petition by his next friend or guardian ad litem and be represented by counsel distinct from those representing his guardian. A statute providing that an infant may, by his guardian or next friend, petition for partition of lands means when such guardian or next friend is competent to act in the 0856. Roodhouse v. Roodhouse, 539. 2 ADMISSIONS OF GUARDIAN DO NOT BIND WARD. - Where a guardian makes admissions inconsiderate, unnecessary, and prejudicial to the rights of his ward, the court will not permit the ward's rights to be prejudiced by such admissions. Buffalo Loan etc. Co. v. Knights Templar etc. Ass'n, 839. HABEAS CORPUS. THAT A JUDGMENT OF CONVICTION IS ERRONEOUS because the affidavit on which it was founded does not state a public offense does not entitle the defendant to be discharged upon habeas corpus. McLaughlin v. Elchison, 658. See EXTRADITION, 2 HIGHWAYS. 1. HIGHWAYS BY USER. —A highway established by user need not be of the statutory width. A highway by user becomes such to the width and extent used. Wayne County Sav. Bank v. Stockwell, 708. 2. HIGHWAYS BY USER · ABANDONMENT. —A highway established by user, or any portion of it, may be lost by non-user, but the non-user will not affect the portion kept in use. Id. HOMESTEAD. 1. WIDOW AND STEP-MOTHER AS HEAD OF FAMILY. -When a testator's widow, who is the step-mother of his minor children, undertakes, after his death, to keep together, care for, and support them, she has a right, as the head of a family, to take a homestead in his real estate. Holloway v. Holloway, 484. HOMESTEAD AND DOWER-WIDOW'S RIGHT TO, UNDER WILL. A devise by a husband to his wife does not extinguish the widow's right to both homestead and dower, unless such intent clearly appears from the terms of the will; and although it need not appear in express words, still, if it is doubtful, she will not be excluded. Hatch's Estate, 109. RIGHT OF WIDOW TO, UNDER WILL-A husband and father cannot by will deprive his widow and minor children of their homestead right, but the provisions of his will may be so clearly expressed to be in lieu of homestead that his widow may be compelled to choose which she will take, and by electing to take the former, renounce the latter. Id. HOMESTEAD AND DOWER-WIDOW'S RIGHT TO. — Under a will by which a husband, after making two specific bequests, devised the residue of his estate, real and personal, one third to his wife, two ninths to his daughter, and four ninths to his son, the widow will take both her homestead and dower. Id. 6. HOMESTEAD AND DOWER-WIDOW'S RIGHT TO, UNDER WILL Where a widow who is a devisee under her husband's will occupies with her children and carries on the farm in which she claims a homestead for several years after her husband's death, without having either her homestead or dower set out to her, she is not thereby deprived of the right to both homestead and dower in her husband's estate. Id. 6. WHEN EXPIRES. - As against creditors, a homestead held by a widow in her deceased husband's estate does not expire until her death. Holloway v. Holloway, 484. 7. WHEN TERMINATES. Whether widow's homestead in her deceased husband's estate lasts during her lifetime, as against the children, who have all arrived at age, or whether they are then entitled to a division of the estate as provided in their father's will, quære. Id. 8. SALE OF HOMESTEAD OF DECEDENT DURING MINORITY OF HIS CHILDREN VOID.- Where land owned by a father who leaves minor children was ■ homestead at the time of his death, a sale thereof made during their minority is void. Kessinger v. Wilson, 220. 9. ESTATES OF HOMESTEAD AND OF INHERITANCE SEPARATE AND DISTINCT WHEN. — Where a father seised of a homestead dies leaving two minor children as his heirs, they have two separate and distinct estates in the land, an estate of homestead and an estate of inheritance, their right to the possession and enjoyment of which does not exist at one and the same time, and neither of which estates is merged in the other. The heirs, in such case, have two rights of entry upon the land, -one when they become entitled to the homestead, and the other when the younger attains his majority. Id. HOUSE OF ILL-FAME. See CRIMINAL LAW, 11; LIBEL AND SLANDER, & HUSBAND AND WIFE. L JUDGMENT LIEN AGAINST HUSBAND EFFECT OF JOINT CONVEYANCE. When husband and wife, by joint deed of bargain and sale, convey in fee-simple, and for full value, lands devised to her, the right of the husband to take as tenant by the curtesy is extinguished, and the purchaser takes the land free of any existing judgment liens against the husband. Evans v. Lobdale, 358. 2 HUSBAND NOT DEFRAUDED BY WIFE'S PURCHASING LAND SO AS TO PREVENT HIS RIGHT OF DOWER FROM ATTACHING. It is no fraud upon husband for his wife, in purchasing lands with her own separate means, or with means derived from sources other than her husband, to have the title conveyed to a trustee for the express purpose of preventing his right of dower from attaching thereto. Kirkpatrick v. Clark, 531. 1 NEGLIGENCE-RIGHT OF HUSBAND TO RECOVER FOR LOSS OF SOCIETY OF WIFE-BASIS OF RECOVERY. A husband is entitled to recover compen. sation for the loss of the society of his wife, resulting from the negligence of a third party, and the word "society," in this connection, means such capabilities for usefulness, aid, and comfort as the wife possessed at the time of the injury. Any diminution of those capacities resulting from the negligence of a third person constitutes a just basis for an award of compensatory damages therefor. Furnish v. Missouri P. R'y Co., 800. 4 NEGLIGENCE-LOSS OF SOCIETY OF WIFE - NECESSITY OF DIRECT PROOD OF VALUE. — In an action by a husband to recover for the loss of the society of his wife, resulting from the negligence of a third party, direct proof of the value of such loss is not required; for upon the establishment of the fact of such loss, the assessment of reasonable compensation therefor necessarily rests in the discretion of the court or jury trying the fact. Id. 5. SEPARATE PROPERTY - EVIDENCE OF TITLE. -The return of separate personal property of the wife for assessment by her husband as his own, or of a mortgage of such property by him as his own, is not evidence against the wife's title, unless supplemented by proof of her knowledge and consent. De Votie v. McGerr, 426. & SEPARATE PROPERTY-HUSBAND'S DEBTS. -The separate property of a wife becomes subject to the payment of her husband's debts only when he is permitted to deal with and obtain credit upon it as his own, with her full knowledge and consent. Id. 7. MARRIED WOMAN CANNOT BIND HERSELF BY EXECUTORY CONTRACT TO CONVEY her real estate. Watters v. Wagley, 232. See AGENCY, 6; Equity, 1; Judgments, 3; WILLS, 1. IMPRISONMENT. INDEMNITOR. See JUDGMENTS, 14. INDICTMENT. See CRIMINAL Law. INFANTS. 1. RIGHT TO RECOVER FOR NECESSARIES. - A person who furnishes a minos who has no guardian with aotual necessaries is entitled to recover therefor. Burton v. Willin, 363. & DEED MADE BY A MINOR IN EXECUTION OF A TRUST cannot be disaffirmed by him. Nordholt v. Nordholt, 268. 8. A MINOR WILL NOT BE PERMITTED TO ADOPT A PART OF AN ENTIRE TRANSACTION Which is beneficial to him, and reject its burdens. Hence if a father of minors acts for them, they must either accept or repudiate the entire transaction; they cannot retain its fruits and at the same time deny its obligations. Peers v. McLaughlin, 806. 4 MINORS CANNOT Avoid a Mortgage and Affirm a Deed, WHEN BOTH ARE MADE AT THE SAME TIME, relate to the same property, and to gether make but one transaction. Id. See Damages, 3; Guardian and WARD; Homestead; Railroad Compa NIES, 1, 2. INFORMATION. See CRIMINAL LAW. INJUNCTIONS. 1. INJUNCTION TO PREVENT THE REVOCATION OF A LICENSE TO BUILD A LEVEI on the lands of another will be granted, when, acting under such license, the licensee has constructed such levee, and it is necessary to protect his lands from overflow; and the removal or destruction of such levee will - & DAMAGES. — Where an injunction is wrongfully issued and is framed in See ATTACHMENT AND GARNISHMENT, 6; MUNICIPAL CORPORATIONS, 19; INNS AND INNKEEPERS. 1. INNKEEPER IS NOT LIABLE FOR LOSS OF BOARDER'S BAGGAGE and other - 2 INNS, BOARDERS AT, WHO ARE. One who goes to an inn kept as a pleas INNUENDO. See LIBEL AND SLANDER, 13-16. IN PARI DELICTO. See CONTRACTS, 5. INSANE PERSONS. CREDITOR OF PERSON OF UNSOUND MIND, whose mental unsoundness has not See MARRIAGE AND DIVORCE, 1. INSOLVENCY. See NEGOTIABLE INSTRUMENTS, 10. INSTRUCTIONS. See APPEAL AND ERROR, 10; TRIAL, 7, 8. INSURANCE. 1. WAIVER OF CONDITION. — A provision in a fire insurance policy that a loss paid, and, without disclosing his want of authority, positively refuses to pay the loss, the company is estopped from setting up and relying upon such want of authority on the part of the agent as a defense. Id. 8. DECLARATIONS BY AGENT, WHEN BINDING. - Declarations made by a special agent and adjuster of losses for an insurance company, directly in connection with the business he is authorized to transact, and, to all appearances, fairly within the scope of his agency, are binding upon the company. Id. LIMITATION OF POWER OF AGENT, WHEN NOT BINDING ON INSURED. — The power of insurance agents may be limited by the companies, but parties dealing with them as to matters within the real or apparent scope of their agency are not affected by such limitations, unless they have notice thereof. Id. 6. In Construing ▲ Policy of INSURANCE, the court should lean against that construction which imposes upon the assured the obligation of a warranty. National Bank v. Union Ins. Co., 324. 6. IN DETERMINING WHETHER A STATEMENT IN A POLICY OF INSURANCE 13 ▲ WARRANTY on the part of the assured, the entire policy must be considered, and if, from the whole, it appears that such statement was not intended as a warranty, it will not be so construed. Id. 1. UNINTENTIONal MisstatemeNT BY AN ASSURED will not be treated as a breach of warranty rendering his policy void, when the policy itself declares that fraud, false swearing, misstatement, or concealment of a ma terial fact by the assured shall render this policy void. Id. 8. CHANGE IN THE POSSESSION OF THE PREMISES INSURED will not avoid ■ policy of insurance made payable to a mortgagee, if he was not aware of such change, and the policy provided that it should not affect him, unless he should fail to give notice thereof after the change became known to him. Id. 2. MORTGAGEE IS STILL PROTECTED BY A POLICY OF INSURanos Made PAT. ABLE to him, though he has foreclosed the mortgage and purchased the property at the sale, if the mortgagor retains the right to redeem from the sale. Id. 10. SUPPRESSION OF MATERIAL FACTS - WAIVER BY COMPANY- Evi DENCE. — In an action to recover on an accident insurance policy, which is resisted on the ground that the insured suppressed the fact of his deafness by stating that he was free from any bodily infirmity at the time he was insured, the actual knowledge of such deafness by the insurer's agent at the time is constructive notice of it to his principal, and constitutes a waiver of objection that the deafness was a bodily infirmity, although the policy provided that such agent should have no power to waive its conditions. Hence evidence that such agent knew or ought to have known of such deafness when he solicited and secured the policy is admissible. Follette v. United States M. Acc. Ass'n, 878. IL WAIVER OF REPRESENTATIONS AS TO BODILY INFIRMITY-EVIDENCE -An application for insurance constitutes part of the contract between the insurer and the insured, and the representations contained in it are, presumptively, inducements to the former to enter into it. But when it appears that an agent, through whom the company acta, himself examined or frequently conversed with the applicant, who was partially deaf, had opportunity to test the extent of his infirmity, and afterwards solicited, or forwarded with favorable recommendation, his application for insurance against accident, the insured is not precluded |