Flood v. Kerwin, 113 Wis. 673.

ment for care and attendance" in the testator's last sickness, to be collected out of his estate after his death, provided he died a bachelor, was a will, and not a mere admission of an indebtedness. Ferris v. Neville (Mich.), 86 N. W. Rep. 960. We are here only concerned with the question whether the paper is in fact a will, and hence whether it was properly admitted to probate. The question of its construction was not determined in the trial court, and is not determined here, except that it is in the form of a will, and was properly admitted to probate as such. The taxable costs in this court are payable out of the estate.

By the Court.-The judgment of the circuit court is affirmed.

INDEX.

ABANDONMENT.

Of homestead. See HOMESTEADS.

Of possession. See ADVERSE POSSESSION, 1.

ACCOMMODATION INDORSERS. See BILLS AND NOTES, 4, 5.

Cause of action.

ACTION.

See ACTION. APPEAL, 8, 22-24.

ASSIGNMENT FOR
BENEFIT OF CREDITORS, 2, 3. CORPORATIONS, 1-3. EJECTMENT. 5.
EMINENT DOMAIN, 1-7. HIGHWAYS. LOGS AND TIMBER, 2. MU-
NICIPAL CORPORATIONS, 17-20. PAYMENT, 1. SLANDER. VENDORS.
Abatement and survival. See APPEAL, 22-24. PARTIES, 2.
Conditions precedent. See EXECUTIONS. GARNISHMENT. MUNICIPAL
CORPORATIONS, 18, 20.

1. Sec. 3029, Stats. 1898, authorizes a judgment creditor, on the re-
turn of an execution unsatisfied in whole or in part, to com-
mence an action against his judgment debtor to compel a dis-
covery of any property or thing in action belonging to or held
in trust for him. Held, that where the return of an execution
unsatisfied is unimpeached, the conditions precedent to main-
taining such action have been fully complied with, and in con-
templation of the statute the creditor has exhausted his legal
remedies. Crocker v. Huntzicker,
181

By whom brought: Who may maintain. See ASSIGNMENT FOR BEN-
EFIT OF CREDITORS, 2, 3. CORPORATIONS, 5, 6.

2. A member of a corporation, in his own behalf and that of all
other persons similarly interested, may, in an equitable action,
enforce a right of such corporation for its benefit when other-
wise that right would be lost or impaired to its damage. North-
ern Trust Co. v. Snyder,
516

3. It is essential to an equitable suit of the nature spoken of in the
preceding paragraph, to allege in the complaint facts indicating
to a reasonable certainty that the corporate officers, upon whom
the primary right and duty to act rests, will not perform that
duty.
Ibid.
4. The necessary showing to satisfy the rule stated in the foregoing
paragraph may be made by allegations to the effect that the
corporate officers have refused or neglected to perform their
duty, or by alleging a state of facts indicating that they are so
concerned in the wrong to be redressed, or, for some other rea-
son, are so hostile to any attempt being made to vindicate the
corporate right, that it is not reasonable to expect that they
will perform their duty.
Ibid.

5. The rule stated in the foregoing paragraph does not apply to an
action for mere preventative relief,-a suit to prevent the cor-

poration or its officers from violating the law under which it
is organized. Every member of a corporation has a right, of a
primary nature, in respect to such matters, and may institute
a suit to vindicate it.
Ibid.
6. When a member of a corporation institutes a suit to enforce his
own right of a primary nature, matters which might constitute
an independent cause of action, falling under the rule first
stated, may be joined therewith if so closely connected there-
with as to form a part of the primary right under the rules
governing suits in equity. In that event the right of the cor-
poration may be litigated as an incident to the litigation of the
primary right of the plaintiff, and without any previous de-
mand on the corporate officers to perform their duty in the
matter.
Ibid.
7. The right of a taxpayer to insist upon a return to the public
treasury of money wrongfully taken therefrom ostensibly to
compensate for official services, is not affected by laches on his
part if the corporation, in respect to its legitimate corporate
duties, has not received any consideration for such money, or
the recipient thereof was bound in any event to perform the
service, taking such compensation therefor as was incident to
his office.
Ibid.

Limitations. See LIMITATION OF ACTIONS.

Joinder of causes of action. See ACTIONS, 6.

Ancillary action. See REMOVAL OF CAUSES, 10.

Removal of actions. See REMOVAL OF CAUSES.
ADEQUATE.

Consideration. See FRAUDULENT CONVEYANCES, 2.
Remedy. See CERTIORARI, 2-4. SCHOOLS, 3.

ADJOURNMENTS. See JUSTICES' COURTS, 1, 2.

ADOPTED NAME. See CONTRACTS, 3. SUBSCRIPTIONS, 5.

ADVERSE POSSESSION.

See VENDORS, 2.

1. Where a fence built by defendant's grantors has been maintained
for over sixteen years, the removal of parts of the fence, leav-
ing some of the old posts and boards standing, is not evidence
of an intention to abandon possession of any lands bounded
by such fence. Batz v. Woerpel,
442

2. Sec. 4213, Stats. 1898, provides that when there has been an
actual continued occupation of any premises under a claim of
title, exclusive of any other right, but not founded on any writ-
ten instrument, judgment, or decree, the premises so actually
occupied, and no other, shall be deemed to be held adversely;
and sec. 4214 provides that, for the purpose of constituting ad-
verse possession under the preceding section, land shall be
deemed to have been possessed and occupied only: (1) when
protected by a substantial inclosure, (2) when it has been
usually cultivated or improved. Held, that the inclosure, cul-

tivation, and improvement so mentioned in the statute are, at
most, evidence of the possession and occupancy required by
sec. 4213, and do not exclude actual occupancy and possession
without such inclosure, cultivation, and improvement. Ibid.
3. A vendee of the southern portion of a strip of land built a house
which extended about eighteen inches over his north line.
Thereafter the vendor set stakes for the vendee to build a fence
on the vendee's north line, the stakes and fence built according
thereto being ten feet north of vendee's line as described in
his deed. Plaintiff purchased the balance of vendor's land, and
the south line as described in plaintiff's deed would be ten feet
south of said fence. The fence stood undisturbed for sixteen
years after it was built, when defendant, having succeeded to
the title of the original vendee, removed parts, leaving some of
the old posts standing, two of which remained until the action
was tried. The original vendee and his successors in title, in-
cluding defendant, had used the land, so marked off by said
fence, as a way of ingress and egress to and from the back
door of the house, for more than twenty years. Held, that de-
fendant had title to the ten-foot strip south of the fence by
adverse possession.
Ibid.

AFFIDAVITS. See JUSTICES' COURTS, 3. WILLS, 1, 2.
AGENCY. See CORPORATIONS, 1-3. INSURANCE, 4.

AGENT. VENDORS, 4.

PRINCIPAL AND

ALIENATION. See DEEDS. EJECTMENT, 1. HOMESTEADS, 2, 3. WILLS, 8.

AMBIGUITY. See LOGS AND TIMBER, 1. SLANDER, 4.

AMENDMENTS. See JUSTICES' COURTS, 3. SLANDER, 4.

ANCILLARY ACTION. See REMOVAL OF CAUSES, 10.

ANIMALS. See NEGLIGENCE. MUNICIPAL CORPORATIONS, 11, 12.

APPEAL AND ERROR.

Decisions reviewable: Appealable orders. See APPEAL, 3.

Right to review: Who may appeal: "Aggrieved party.”

TIORARI, 1, 2. TAXATION, 5.

See CER-

1. Under sec. 3048, Stats. 1898, providing for review on appeal "by
any aggrieved party" of judgments and orders, a defendant,
owner of a dam sought to be abated, is an "aggrieved party,"
and may appeal from an order sustaining a demurrer to a plea
in abatement for defect of parties, although such plea was inter-
posed by interveners seeking to protect alleged prescriptive
rights to have such dam maintained. Castle v. Madison, 346
Notice of appeal: Duplicity.

2. An order certifying to the compensation of defendant's attorney
under sec. 4713, Stats. 1898, and an order taxing in favor of
one county and against another the expenses of a criminal ac-
tion arising on a change of venue, pursuant to secs. 2940, 2941,
are not orders made in the action, but each is an order arising
in a separate special proceeding growing out of the action,
affecting different parties, and an appeal therefrom, both orders
being included in one notice, is bad for duplicity. Green Lake
Co. v. Waupaca Co.
425

3. An order refusing to review the taxation of such expenses is
appealable under sec. 3069, Stats. 1898.
Ibid.

Same: Service. See SHERIFFS, 1-3.

4. On appeal from proceedings had under sec. 4713, Stats. 1898, fix-
ing the compensation of an attorney appointed to defend an
indigent person charged with a crime, the attorney, being a
party in interest, is the "adverse party" on whom, in order to
perfect the appeal, the notice required by sec. 3049 must be
served. Green Lake Co. v. Waupaca Co.
425
5. On hearing of an order to show cause why an execution, issued
after notice of appeal and proper undertaking had been given,
should not be stayed, it appeared, from the proof of service,
and was uncontradicted, that such notice and undertaking were
"personally" served upon the clerk of the circuit court, and
also upon one of the attorneys for the adverse party "by de-
livering the same to him at West Superior" on a given date.
Held, that the proof of service was sufficient to satisfy sec.
2820, Stats. 1898. Harris v. Snyder,
451

Record: Bill of exceptions. See EJECTMENT, 1, 6.

6. Where the recitation that a bill of exceptions contains all the
evidence is disputed by facts appearing on the face of the bill,
the supreme court, as to all questions dependent on such facts,
will treat the case as though such recitation were false, and in-
dulge in every legal intendment to support the judgment. Dorer
v. Hood,
607
Review: Questions considered. See APPEAL, 1. CRIMINAL Law, 7.
WILLS, 6.

7. Where contributory negligence appears from the undisputed evi-
dence, that question, although not submitted to the jury, nor
made the ground of a motion for a nonsuit, is presented by a
motion to set aside the verdict and grant a new trial. Ray v.
Stuckey,
77
8. A cause of action not alleged in the complaint nor litigated upon
the trial, will not be considered on appeal. Harris v. Snyder,
451
9. The question of the correctness of instructions to the jury, which
were refused, is not open to consideration on appeal, where no
exceptions are taken to the ruling until after the verdict. Kers-
lake v. McInnis,
659

Same: Findings when disturbed. See JUSTICES' COURTS, 5. LOGS
AND TIMBER, 5. MORTGAGES, 4, 5. RAILROADS, 2. RECORDS, 8-10.
VENDORS, 6, 7. WILLS, 3.

10. Where conflicting testimony is ample to authorize the trial court
in finding the aggregate value of a tract of land, as an en-
tirety, at more than the value as found by a referee, the court's
finding in that respect will be confirmed. Gates v. Parmly, 147
11. A finding to which no exception has been made cannot be re-
viewed on appeal.
Ibid.

Affirmance and reversal: Material and immaterial errors. See AP-
PEAL, 21, 27, 28. ARREST AND BAIL, 2. CLERKS OF COURTS, 6, 7.
CORPORATIONS, 3. EJECTMENT, 2, 4. EQUITY, 3. INSTRUCTIONS
TO JURY, 2. JUDGMENTS, 6. NEW TRIAL. PHYSICIANS AND SUB-