DEMAND-Continued.

Not necessary in replevin case where goods are in custodia legis
and two claimants are contesting rights to property, see RE-
PLEVIN; Seiberling & Co. v. Porter, 7, 9 (1).

Oral.-Banks and Banking.-Deposits.-Custom.-By the custom
of bankers, an oral demand for the payment of the depositor's
account is not sufficient. First Nat. Bank v. Stapf, 162, 164 (4).
DEMURRERS-

See PLEADING.

To supplemental motion for new trial presents no question, see
APPEAL AND ERROR, 57; Miller v. State, 566, 570 (6).
DEPOSITIONS-

1. "Disinterested Person."-Certificate of Notary.-Evidence.-
Statutes. The certificate of the notary to a deposition, that it
was taken down by a "disinterested person,' is not prima
facie evidence of such fact, since the statute ($433 Burns 1901,
$429 R. S. 1881) makes no provision that such fact shall be
certified, and the statute ($8040 Burns 1901, $5965 R. S. 1881)
provides that such certificate shall be evidence only of such facts
as are authorized by law to be stated in such certificate.

Knickerbocker Ice Co. v. Gray, 140, 143 (4).

-

2. Taking of. - "Disinterested Person." - Statutes. - A deposi-
tion, taken before a proper notary and taken down in shorthand
and typewritten by a clerk of plaintiff's attorneys, should be
suppressed, since such clerk was not a "disinterested person"
within the meaning of $433 Burns 1901, $429 R. S. 1881.

-

Knickerbocker Ice Co. v. Gray, 140, 144 (5).
3. Taking of. Student or Clerk in Office of Attorney. · A
student or clerk in the office of an attorney engaged in a cause
was disqualified, in the chancery practice, from taking down
the depositions of witnesses in such cause.

Knickerbocker Ice Co. v. Gray, 140, 145 (6).
4. Suppression.-Waiver.-Defendant does not waive his right
to suppress a deposition, taken down by an improper person,
by reason of the fact that he appeared and cross-examined
the witness whose deposition was taken.

Knickerbocker Ice Co. v. Gray, 140, 147 (7).
5. Improper Taking.-Suppression.-The fact that a deposition,
taken down by an improper person, was true and correct
does not justify the court in overruling a motion to suppress.
Knickerbocker Ice Co. v. Gray, 140, 147 (8).

DESCENT AND DISTRIBUTION-

See WILLS.

1. Advancements.-Bills and Notes.-Consideration.-Where a
mother advanced money to her son, such son to pay interest
thereon so long as she desired, and later she released him from
such payment of interest and took his note only as evidence of
the advancement, such note did not change such advancement
into a debt.
Baum v. Palmer, 513, 521 (7).
The payment of interest, by
agreement, on an advancement does not create the relation of
debtor and creditor for such advancement.

2. Advancements.-Interest.

Baum v. Palmer, 513, 520 (6).

DICTUM-

Not authority, see APPEAL AND ERROR, 26; Small v. Buchanan,
549, 553 (1).

DISCOVERY—

Interrogatories to Party.-Corporations.-Duty to Answer.-In-
terrogatories to parties must be answered without evasion,
and a corporation must have same answered by an agent who
has knowledge of the facts.

Cleveland, etc., R. Co. v. Miller, 381, 384 (1).

DISMISSAL AND NONSUIT-

Agreed dismissal is not breach by confession of bond given to
secure temporary order, see INJUNCTION, 3; St. Joseph, etc.,
Power Co. v. Graham, 16, 19 (2).

Appeal dismissed if appellant transfers his interest, see APPEAL
AND ERROR, 31; Chicago, etc., R. Co. v. Grantham, 279,
281 (1).

Want of Jurisdiction.—Motion.-An unverified motion to dis-
miss a drainage proceeding on appeal to the circuit court be-
cause no freeholder had signed the petition on which the con-
struction of the drain was ordered by the board of commis-
sioners was properly overruled where the record failed to dis-
close who were the signers of such petition.

DRAINS-

Plew v. Jones, 21, 24 (4).

Amendment of petition for, see AMENDMENTS; Plew v. Jones,
21, 25 (7).

Drainage commissioners, disqualified by interest, see COURTS, 1;
Small v. Buchanan, 549, 553 (2).

Motion to dismiss drainage appeal, see DISMISSAL AND NONSUIT;
Plew v. Jones, 21, 24 (4).

Viewers, who have resigned, can not be mandated, see MAN-
DAMUS, 3; State, ex rel., v. Popejoy, 177, 180 (5).

Objection after judgment that qualified persons did not sign
drainage petition is waived, see WAIVER; Plew v. Jones, 21,
25 (8).

Where order establishing, made without objection, jurisdiction
can not be inquired into subsequently, see JURISDICTION, 2;
Plew v. Jones, 21, 24 (6).

1. Construction.-Contractor's Creditors.-Assignment of Con-
tract. Subcontractor with Notice.-Priorities.-A landowner
who becomes surety to enable a public drain contractor to raise
money with which to construct a public drain, on the agreement
that if such landowner had to pay such debt he should have
credit on his assessment for the amount so paid, is not entitled
to enforce such agreement against the assignee of such drain
contract who completed the drain at his own expense, though he
had notice of such landowner's agreement at the time of such
assignment, no conspiracy to defraud such landowner being
shown.
Stitt v. Horton, 555.

DRAINS-Continued.

2. Two or More Counties.-Jurisdiction.-The board of com-
missioners of the county in which a diten proceeding orig-
inates, where the ditch passes through more than one county,
has general jurisdiction over the work; and its orders and
judgments are certified to such other counties to be entered
of record by their boards.

State, ex rel., v. Popejoy, 177, 178 (1).
3. Viewers.-Appointment. Each county concerned in the con-
struction of a drain has the right to appoint its own viewers,
and, in case of resignation, to reappoint.

State, ex rel., v. Popejoy, 177, 179 (2).

4. Viewers. Resignation. To Whom Made. Viewers of a
proposed drain, in the absence of a statute to the contrary,
should tender their resignations to the person or body having
the right to appoint their successors.

State, ex rel., v. Popejoy, 177, 179 (3).
. 5. Viewers.-Resignation.-Vacancy.-The tender and accept-
ance by the board of the resignations of viewers of a proposed
drain creates a vacancy in such offices.

State, ex rel., v. Popejoy, 177, 180 (4).

*

*

-

- Stat-

6. Drainage Commissioners. — Incompetency.-— Waiver.
utes.-Section 5624 Burns 1901, Acts 1901, p. 161, §2, provid-
ing that “all objections to
the acting of any drain-
age commissioner not made within said ten days shall be
waived," gives ten days from the time the landowner is noti-
fied for an opportunity to object before any waiver is imposed
thereby.
Small v. Buchanan, 549, 554 (3).
7. Drainage Commissioners.-Relationship to Landowners.-De-
gree. Statutes.-Under $240 Burns 1901, $240 R. S. 1881, a
drainage commissioner who is related within the sixth degree
or the degree of second cousin to any interested landowner is
disqualified.
Small v. Buchanan, 549, 554 (4).
8. Drainage Commissioners.-Disqualification.-Report.-A re-
port by drainage commissioners appointed pursuant to §5624
Burns 1901, Acts 1901, p. 161, $2, a majority of whom are re-
lated to interested landowners within the degree disqualified by
$240 Burns 1901, $240 R. S. 1881, will, upon an objection made
within ten days after the first notice to a landowner of an as-
sessment, be set aside. Yancey v. Thompson, 130 Ind. 585,
limited.
Small v. Buchanan, 549, 554 (5).

9.

10.

Different Counties.-Viewers. Reports. Statutes.-Joint
Authority.-Under $5677 Burns 1901, $4308 R. S. 1881, a favor-
able report where two counties are interested in the construc-
tion of a drain, must be signed by not fewer than four viewers
out of the six, since $240 Burns 1901, clause 2, $240 R. S. 1881,
provides that where joint authority is given to three or more
persons it shall be construed as giving such authority to a
majority of such persons. Whirledge v. Shoup, 486, 487 (1).

Viewers' Reports.-Notice by Auditor.-Dismissal-Where
three of the six viewers of a drain report unfavorably, it is a
report against the proposed drain; and no notice in such case
is authorized to be given by the auditor under $5663 Burns
1901, Acts 1893, p. 329, §3, and the petition should be dismissed.
Whirledge v. Shoup, 486, 488 (2).

DRAINS-Continued.

11. Jurisdiction of Proposing County.-Under $5677 Burns 1901,
$4308 R. S. 1881, the boards of commissioners of the counties
interested must meet conjointly to decide whether a proposed
drain is of public utility, and when they decide favorably the
proposing county shall render a judgment ordering such con-
struction, the other counties.being under the legal duty to con-
form thereto.
Whirledge v. Shoup, 486, 488 (3).

DYING DECLARATIONS-

See EVIDENCE.

EASEMENTS-

Quieting title lies as against claim of, see QUIETING TITLE, 1-3;
Chicago, etc., R. Co. v. Grantham, 279.

ELECTION-

By widow, see WILLS, 1-5.

Does not apply to paragraphs stating separate causes of action,
see TRIAL, 67; Southern R. Co. v. State, 613, 626 (13).

ELECTIONS-

Where canvassing board does the acts, asked by mandamus, vol-
untarily, its appeal will be dismissed, see APPEAL AND ERROR,
55; McCormick v. State, ex rel., 639.

Filing by town trustees of certificates of, a condition precedent to
right to pass ordinances, see MUNICIPAL CORPORATIONS, 1;
Low v. Dallas 392, 395 (6).

Who are voters of school districts, see SCHOOLS AND SCHOOL DIS-
TRICTS, 3, 4, 6; Ireland v. State, ex rel., 377, 379 (3), (4),
380 (6).

1. Contest.-Appeal from Board.-While the statutes give the
right of appeal from the decisions of the board of commission-
ers in contested election cases, such decisions must be final in
their nature.
Summe v. Browne, 490, 491 (1).
2. Contest. Procedure.-Boards of Commissioners. The pro-
ceedings before the boards of commissioners in election con-
tests are governed by the rules of law obtaining in circuit
courts.
Summe v. Browne, 490, 491 (2).
3. Contest.-Final Judgment.-An order of the board of com-
missioners in an election contest, that such commissioners "after
due consideration and careful examination,
* do now
find the contestee William F. Browne is duly elected by a plu-
rality of one vote," is not a final judgment, and an appeal there-
from should be dismissed. Summe v. Browne, 490, 491 (3).

EMINENT DOMAIN-

By railroads, see PLEADING, 60; Chicago, etc., R. Co. v. Grantham,
279, 283 (2).

Supervisors may exercise right of, for repairs of highways, see
HIGHWAYS, 3; Rodenbarger v. State, ex rel., 685, 688 (3).
Payment of award gives street railroad right to possession pend-
ing appeal, see STREET RAILROADS, 1; Chicago, etc., R. Co. v.
Indianapolis, etc., Traction Co., 453, 458 (2).

EQUITY-

Equitable defense good to an action at law, see PLEADING, 25;
American Food Co. v. Halstead, 633, 637 (5).

As to equitable set-off and counterclaim, see SET-OFF AND COUNTER-
CLAIM, 1-3; Porter v. Roseman, 255.

Where evidence is documentary in equity cases Supreme Court
can render final judgment, see APPEAL AND ERROR, 83; State,
ex rel., v. Board, etc., 262, 271 (8).

ESTATES-

Vesting of, see WILLS, 12, 13; Taylor v. Stephens, 200.

Of absentee, limitation of action as against deed of administrator
of, see LIMITATION OF ACTIONS, 1; Barton v. Kimmerley, 609,
611 (3).

State has right to administer upon estates of absentees, see CON-
STITUTIONAL LAW, 6; Barton v. Kimmerley, 609, 610 (2).
Vesting. Wills. Words of Survivorship. Presumption. The
law favors that interpretation of a will which permits the estate
to vest at the earliest moment, and words of survivorship are
presumed, unless a contrary intention clearly appears, to re-
late to the death of testator.

ESTOPPEL-

Taylor v. Stephens, 200, 202 (1).

Must be pleaded with particularity, see PLEADING, 31; Barthol-
omee v. Town of Lowell, 224, 225 (1).

Of municipal corporations to question validity of its bonds, see
MUNICIPAL CORPORATIONS, 2; Bartholomee v. Town of Lowell,
224, 225 (2).

May exist because of dealing with pretended corporation, see
CORPORATIONS, 5; Clark v. American, etc., Coal Co., 213, 217 (7).
EVIDENCE-

See DEPOSITIONS; NEW TRIAL.

Of larceny of bailment, see LARCENY, 1; Bradley v. State, 397,
398 (1).

As to non-access, see BASTARDY, 4; Evans v. State, ex rel., 369,
377 (9).

Certificate of notary to deposition is evidence of things specified
by statute, see DEPOSITIONS, 1; Knickerbocker Ice Co. v. Gray,
140, 143 (4).

When same questions raised on, as on pleadings, see PLEADING,
29; Aetna Life Ins. Co. v. Fitzgerald, 317, 322 (4).
Supreme Court takes judicial notice of evidence in former appeal
to compare same with that of subsequent appeal, see APPEAL
AND ERROR, 47; Westfall v. Wait, 353, 359 (7).

Decision on appeal on same evidence is res judicata as to suffi-
ciency of, in subsequent trial, see APPEAL AND ERROR, 46, 47;
Westfall v. Wait, 353, 359 (7), (8).