7. The mere fact that, some eighteen years before such loans were made, B.
had in fact repaid a loan made by A. to another son under like circum-
stances, remarking that "he did not want A. to lose anything on his
(B.'s) sons," held, not sufficient evidence that the subsequent loans were
made with any reasonable expectation that B. would repay them if his
sons did not.
Ibid.

8. A subsequent loan was made by A. to another son of B., under circum-
stances which satisfy this court that it was procured by such son from A.
by direction of B., and with a reasonable belief on A.'s part that B. would
pay it if the borrower did not; but there was no written promise and
therefore no legal obligation on B.'s part. The son failed to repay the
loan. Held, that B. might treat it as a debt due from him to A., and
pay it by a transfer of property to A. in preference to other creditors.
Ibid.

9. No actual intent to defraud being shown, and there being a valuable con-
sideration for the deed here in question, but not sufficient to uphold it as
an absolute conveyance, against creditors, it is treated in equity as a
security for the sums due from the grantor to the grantee.
Ibid.

FRAUDS, STATUTE OF.

See CONTRACTS, 1.

1. Soon after real property of the plaintiff had been bid off by defendant at
an auction sale, defendant orally agreed with plaintiff to pay a certain
part of the price the next day, and the remainder a few days later.
Soon after the sale, also, plaintiff's agent requested defendant to make
a deposit with him, for the plaintiff, of some portion of the purchase
money; and, upon defendant's excusing herself from so doing, and
promising to make it all right with plaintiff, he drew up a memorandum
of the sale, and signea it for plaintiff; but this was never delivered to,
or accepted or assented to by, defendant. No other memorandum of the
sale was made, by tho auctioneer or any other person. Held, that the
sale was valid, under the statute. R. S., sec. 2304. Bamber v. Sarage,
110

2. The mere fact that an advantage may incidentally result to the promisor
from his oral promise to pay the debt of another, is not sufficient to take it
out of the statute of frauds, but there must be other evidence that such
advantage was the object or consideration of the promise. Clapp v.
Webb,
638

GAMING CONTRACTS. See CONTRACTS, 6-8.

GARNISHMENT.

1. Under sec. 2766, R. S. (which provides that the proceeding against a gar-
nishee shall be deemed an action by the plaintiff against the garnishee
and the original defendant, and that all the provisions of law relating
to proceedings in civil actions at issue shall be applicable thereto), the
court, even before issue joined on the garnishee's answer, may require
him to make it more definite and certain by giving a copy of the con-
tract set up in such answer as the basis of his claim to hold the property
in dispute belonging to the original defendant; and such an order is not
appealable. Lusk v. Galloway, Garnishee, etc.,
164

2. An insurance company garnished in an action as owing moneys on policies
to the principal defendant, admitted by its answer its liability on the
policies, but stated that they were made payable to certain other persons
named, as their interest might appear," and that it was unable to de-
termine to whom the moneys were due; and it offered to pay the money
into court, or to any person to whom the court should direct it to be paid,
and asked to be allowed to deduct its costs out of the fund. No issue
being made on the answer, the court, besides directing the persons therein
named to be made defendants in the proceeding, ordered the garnishee's
costs to be paid by the plaintiff. Held, on plaintiff's appeal, that it
was error not to order payment of such costs out of the fund. Baker v.
Lancashire Ins. Co., Garnishee,
193
3. Under our statutes, where garnishee process is issued by a justice of the
peace in aid of an execution upon a judgment previously rendered by
the same justice or his predecessor, the execution defendant has no right
to have the proceedings in garnishment removed on account of prejudice
of the justice before whom they are pending. Garland v. McKittrick
et al., Garnishees,
261
4. Whether the garnishee is entitled to such a removal in such a case, is not
here determined.
Ibid.
5. While a garnishee's general denial of indebtedness to his principal may
be treated as a pleading, under the statute, yet where, before issue
joined, he has been subjected to a long examination as to the particulars
of his dealings with the principal running through a course of years, he
may, in his evidence on the trial after issue joined, explain and correct
mistakes in his former answers, without amending such answers as
though they were parts of a pleading. Klauber v. Wright, Garnishee,
303

"GENERAL LAW." See LIEN (A.), 4.

HIGHWAYS.

See CITIES.

1. An action under sec. 101, ch. 152, Laws of 1869 (which is the same as
sec. 101, ch. 19, R. S. 1858), to recover a penalty for the wilful obstruc-
tion of a highway, is a civil action; the state, in whose name it is to be
brought (R. S., sec. 3295), has the right of appeal therein; and a judg-
ment against the state may properly include the defendant's costs
which are payable by the county. R. S., sec. 3313. The State v. Smith,

134
2. The word "wilfully" is used in that statute in such a sense as to exclude
from its operation a deposit of material in the highway by the land-
owner in good faith and for a justifiable purpose.
Ibid.

3. While the public authorities have a right at all times to put a highway in
good condition for travel, and to keep it in repair, they have no right,
as against the owner of the land included in the highway, to do acts
thereon which, without contributing to those ends, create a private
nuisance.
Ibid.

4. Where, therefore, the overseer of a highway excavated, at the side there-
of in front of the land-owner's store, a ditch which did not effect the
purpose of draining the highway, but was so constructed that the water
merely collected in that spot and formed a mud-hole, interfering with

the use of the property: Held, that the filling of such ditch by the land-owner, without authority from the supervisors or the overseer, was not a wilful obstruction of the highway within the meaning of the statute. Ibid.

5. Proof that a parcel of ground had been used as a highway for twenty years, and that work had been done thereon under the direction of the overseer of highways, held sufficient to show that the same was a highway, which the town was bound to keep in repair. Davis v. Town of Fulton, 657

HUSBAND AND WIFE.

See ESTATES OF DECEDENTS, 3.

Where a note and mortgage by husband and wife, and the certificate of acknowledgment of the mortgage by both, are perfectly fair and regular on their face, a defense against them by the wife on the ground that they were executed by her under undue influence and coërcion on the part of the husband, and that she never in fact acknowledged the mortgage, can be sustained only upon perfectly clear, convincing and satisfactory evidence; in general, the unsupported testimony of the wife alone, to contradict the certificate of acknowledgment, will not be regarded as sufficient; and in the present case this court regards the testimony of the wife (for which see the opinion) as insufficient, and reverses the judgment rendered in her favor. Smith v. Allis, imp., 337

"INDORSED." See VILLAGE PLAT, 2.

INDORSEMENT (Contract of). See SUBROGATION.

INFORMATION (in Criminal Law).

See EXTRADITION.

INJUNCTION.

See APPEAL (A.), 1. EQUITY, 1. RAILROADS, 4. TRADE MARKS, 7. 1. On a complaint which showed merely that the defendants, a city and its employees, were interfering by physical force with the construction of a railroad bridge by the plaintiff, a court commissioner ordered them to show cause before the circuit judge on a day named, why they should not be restrained from interfering with said bridge according to the prayer of the complaint; and he also made a temporary order that defendants, their agents, etc., "desist and refrain from in any way or manner interfering with the construction of [said] bridge by plaintiff, and from cutting the piles being there driven, or doing any act of any kind to hinder, delay, impede, impair or prevent the contractor and his employees from performing said work, and from doing any act to hinder, delay or prevent the building of the proposed line of railway," etc. On the next day, the same court commissioner, on application of the city by its attorney, and upon the answer of the defendants setting up a counterclaim for an injunction restraining plaintiff from building said bridge, etc., ordered plaintiff to show cause before the circuit judge on the day previously named, why it should not be so enjoined, and also made a temporary order retraining plaintiff in the meantime from building the bridge. Held, that, construing strictly the first injunctional order, above recited, in view of the matters alleged in the complaint upon which it

was founded (and also in view of the second order made by the same
commissioner), it must be understood as restraining defendants only from
forcible interference with the construction of the bridge; and the city's
attorney was not guilty of any contempt in obtaining the second injunc-
tional order. Wis. Cent. R. R. Co. et al. v. Smith, imp.,
140

2. Where a town board of supervisors is authorized by law to issue bonds in
aid of a railroad only upon the presentation of a petition therefor signed
by a certain number of tax-payers of the town, the procuring and affix-
ing of such signatures on Sunday is "business," and is unlawful, and
confers no authority upon the supervisors to issue such bonds. And the
fact that plaintiff affixed bis signature on Sunday will not prevent
him from obtaining an injunction against the issue of the bonds on the
ground that the required number of signatures were not affixed on any
secular day, where he did not on any secular day authorize the presenta-
tion of such petition to the supervisors, and where nothing had been done
by the railroad company to earn the bonds before it was notified
that plaintiff would resist their issue and denied the validity of such
signature. De Forth v. Wis. & Minn. R. R. Co., imp.,
320

3. The complaint for an injunction in such a case need not aver that the per-
sons who signed the petition on Sunday were not of the class described in
sec. 4596, R. S., as persons who conscientiously believe that the seventh
day or any other day of the week ought to be observed as the Sabbath,'
etc.
Ibid.
4. Under sec. 2781, R. S., where the defendant in a suit for an injunction
moves to vacate a temporary injunction upon the verified answer (which
has by the statute the effect of an affidavit), the plaintiff may oppose the
motion on affidavits additional to those on which the injunction was
granted. Starks et al. v. Redfield,
349

5. Defendant, having a tax deed on lands, which, however, he regarded as
invalid, and desiring to obtain the lands for the purpose of cutting the
timber therefrom and selling it to plaintiffs (who were mill-owners en-
gaged in manufacturing lumber in the vicinity), wrote to the owner of
the land in plaintiffs' name and with their consent, opening negotia-
tions for its purchase; and afterwards plaintiffs purchased the land, paid
the purchase price, and took the deed, in pursuance of an agreement be-
tween themselves and defendant that the latter would cut the pine tim-
ber thereon and deliver it to them at their mills, at a price named, and
that the value of the logs so delivered should be credited to defendant
as payment upon the moneys advanced by plaintiffs for the land,
until the whole should be paid; that the land should then be deeded by
plaintiffs to defendant; and that in the meantime plaintiffs should hold
the title as security for the moneys advanced. Held, that upon these
facts the rights of plaintiff's were those of mortgagees.
Ibid.

6. Proof that defendant, after the above transactions, had built a saw-mill
of his own upon or near said lands, for the purpose of sawing the tim-
ber thereon, and had already sawed a large amount of logs taken from
the land, and converted them to his own use, and that, although plaint-
iffs had notified him to quit such cutting, etc., he continued to cut and
remove and convert the timber, thus threatening to render plaintiffs'
security inadequate, is ground for an injunction against such waste,
without proof that defendant is insolvent.

INSTRUCTIONS TO JURY. See JUDGMENT (D.), 1, 2.

INSURANCE AGAINST FIRE. See JOINDER OF PARTIES.

Ibid.

INTEREST. See FRAUD, 4.

JOINDER OF CAUSES OF ACTION. See LIEN (A.), 3 (1).

JOINDER OF PARTIES.

See EQUITY, 2. JOINT AND SEVERAL DEBTORS.

Where property of A., insured as to a part of its value, is destroyed by the
negligence of B., the insurers, who have paid A. the insurance moneys
due him, in whole or in part, must be joined with him in an action
against B. to recover dainages for the destruction of such property; or,
if they refuse to join as plaintiffs, must be made defendants. Pratt v.
Radford,

JOINT AND SEVERAL DEBTORS.

114

joint debtor not served, after

The remedy provided by statute against
judgment against the other joint debtors (R. S., secs. 2795–7), has no
application to joint and several debtors. Dill v.. White,

JUDGMENT.

(A.) Correction of Judgment at Subsequent Term. See Costs, 4.

(B.) Judgment as a Bar.

456

A judgment in a justice's court in favor of a physician or surgeon for pro-
fessional services is not a bar to an action by the defendant therein
against such physician or surgeon for malpractice in rendering such
services, where the question of malpractice was not litigated in the suit
in justice's court. Ressequie v. Byers,

(C.) Vacating Judgment.

650

Proof, made to the court, of a default, or of the filing of lis pendens, is not
required to be filed, and is no part of the record, unless made so by bill
of exceptions; and where the judgment recites the making of such
proof, such recital cannot be contradicted by affidavits in support of a
motion to vacate the judgment; especially where neither the service,
the default, nor the actual filing of lis pendens, is denied, and there is
no claim of any defense. Mitchell v. Rolison, imp.,
155

(D.) Reversal of Judgment.

See APPEAL (A.), 4. CRIMINAL LAW, etc., 4.

1. In an action for injuries from negligence, if the person injured was, at the
time of the injury, intoxicated in any degree, that fact is proper to be con-
sidered by the jury in determining the question of contributory negli-
gence; and a judgment for plaintiff is reversed for an instruction to the
effect that "the fact of intoxication alone" would not "prove contribu-
tory negligence," unless the proof showed such a degree of intoxication
that "imbecility would begin to affect" the intoxicated person,- such
instruction being regarded as liable to mislead the jury. Fitzgerald,
Adm'x, v. Town of Weston,

354

2. A judgment will be reversed for instructions which, even though abstractly
true, are inapplicable to the facts in evidence, and probably misled the
jury to the appellant's prejudice. Allen et al. v. Chippewa Falls, 430