Appeal and error-Review. 28. A conviction on conflicting testimony will not be disturbed because of alleged insufficiency of evidence.-Lewis v. State, (Ind. App.) 81 N. E. 875. 29. Where the record in a criminal case does not show the existence of the facts upon which a motion for a new trial is based, it is presumed such facts do not exist.-Townsend v. State, (Ind. Sup.) 31 N. E. 797. 30. Where the record does not show that a certain letter was offered in evidence, or that the proper preliminary proof to entitle it to go in evidence was produced, there is no ground for complaint that it was excluded.-Conrad v. State, (Ind. Sup.) 31 N. E. 805. 31. Where the entire evidence is not incorporated in the record, it will be presumed on appeal that the trial court neither erred in any of its rulings nor refused any instructions which were applicable to the facts of the case.-Holland v. State, (Ind. Sup.) 31 N. E. 359. Cross-Examination. Of witness, see "Witness," 7-10. See "Constitutional Law," 4. See "Dower." Curtesy. CUSTOM AND USAGE. When may be proven. 1. Where a sale of coffee was in writing, and no mention made of samples, the seller could not show a custom making it the duty of buyers of coffee to accept or reject it immediately after the receipt of overland samples, and that. consequently, the buyer had accepted the coffee by retaining such samples for two days. 8 N. Y. S. 426, affirmed.-O'Donohue v. Leggett, (N. Y. App.) 81 N. E. 269. Evidence. 2. In an action for the price of goods sold, evidence by plaintiff of its custom of dealing, and that defendant knew it, is admissible to show the meaning of the term "net" weight.Nonantum Worsted Co. v. North Adams Manuf'g Co., (Mass.) 81 N. E. 293. 3 There was no error in excluding evidence that it was the custom of railway companies to put defective rails in their side tracks, such evidence having been offered for the purpose of showing that defendant's track was in a reasonably good condition.-Lake Erie & W. R. Co. v. Mugg, (Ind. Sup.) 81 N. E. 564. DAMAGES. See, also, "Death by Wrongful Act," 3. 1. Defendant contractor, in his cross complaint in an action for the foreclosure of a lien on a house, filed by the dealer who furnished defendant materials for its construction, averred that the lien was filed in violation of an agreement made by the dealer that he would not file such lien because it would injure defendant's standing as a contractor, and defendant claimed judgment for $500 for such violation, to be set off against the claim of plaintiff, who had purchased the lien. Held that, since no special damages were averred, and it did not appear in what manner defendant had been injured in character or standing as a contractor, the damages if any were recoverable, would be limited to nominal damages.-Reid v. Johnson, (Ind. Sup.) 31 N. E. 1107. Measure of damages for breach of contract. 2. For the breach of an executory contract to excavate foundations by abandonment thereof by the employer, the general damages are measured by subtracting the actual cost thereof from the contract price.-Richter v. Meyer, (Ind. App.) 81 N. E. 582. Measure of damages for torts. 3. Defendant sold plaintiff coloring matter for ice cream, which, being used, made customers sick. Held, that not only could recovery be had for the loss of the cream in which the coloring matter was used, but for injury to business through loss of trade due thereto. 12 N. Y. S. 155, affirmed. Swain v. Schieffelin, (N. Y. App.) 31 N. E. 1025. 4. Where plaintiff has a cause of action against defendant for damage accruing to her in the course of the erection of a building by defendant next to the property occupied by her as a lodging house, she is entitled to compensation for loss of rents caused by her lodgers relinquishing their rooms, if this is attributable to defendant.-Pye v. Faxon, (Mass.) 81 N. E. 640. Personal injuries. 5. In estimating the damages occasioned by a personal injury, the jury may consider the effect of the injury upon the plaintiff's future health, and the bodily pain suffered by him, so far as shown by the evidence.-City of Sandwich v. Dolan, (Ill. Sup.) 31 N. E. 416. 6. An instruction that damages shall bear the basis of a fair compensation for all injury sustained; that the jury should take into consideration plaintiff's physical and mental suffering, the character of the injury, whether temporary or permanent, and the great reduction, if any, in his ability to earn money,-was proper.-Wabash W. Ry. Co. v. Morgan, (Ind. Sup.) 31 N. E. 661. 7. In an action for personal injuries, it is not reversible error to charge that, in assessing damages, the jury may take into consideration the disability occasioned by the accident, and any impairment of plaintiff's general health, which will affect his future ability to attend to his ordinary business, where, in other instructions, the jury are told that in estimating the plaintiff's damages, present and prospective, they should give only such damages as are shown by the evidence, and that, to enable plaintiff to recover, his right to do so must be shown by a preponderance of the evidence, since, taking all the instructions together, they do not assume as a fact that "an impairment of the plaintiff's general health" firmed.-Lake Erie & W. R. Co. v. Wills, (Ill. was shown by the evidence. 39 Ill. App. 649, afSup.) 81 N. E. 122. Pleading. 8. Damages claimed in a complaint, as being the direct and necessary result of the breach of contract counted on, need not be specially alleged. -Richter v. Meyer, (Ind. App.) 81 N. E. 582. Evidence. 9. In an action against a sheriff for the wrongful sale, under an execution against a third person, of a shopworn stock of miscellaneous and school books and stationery owned by plaintiff, evidence of what the purchasers at the execution sale obtained for the stock at bona fide private sales in cities some miles distant from the place of conversion, and nearly a year afterwards, is competent as tending to prove the market price of the goods at the time of the conversion; the value of the stock being of a staple character, and not liable to fluctuations.-Parmenter v. Fitzpatrick, (N. Y. App.) 31 N. E. 1032. Dams. Damages occasioned by, see "Trespass," 2, 3. Liability for overflow, see "States and State Officers," 2. DEATH BY WRONGFUL ACT. Liability of employer-Notice of injuries to employe. 4. In an action for damages sustained by plaintiff in an exchange of land, the complaint stated that defendants were partners in the business of buying and selling real estate; that plaintiff placed his farm in their hands for sale; that they finally proposed to buy the farm, and, as Kansas; that they made certain false and fraudpart payment, convey to plaintiff certain land in ulent representations concerning the Kansas land, which were relied on by plaintiff, and by which he was induced to accept the land at a certain price; and that the land was worth much less than it would have been worth if it had been as represented. Held, that the complaint stated a cause of action.-Williamson v. Woten, (Ind. Sup.) 31 N. E. 791. 1. By the employers' liability act, (St. 1887, c. 270,) a right of action against an employer is given in section 1 to an employe who is injured without being instantly killed, and in section 2 to the widow and next of kin, when an employe is instantly killed; and section 3, as amended by St. 1888, c. 155, provides that no action under the act shall be maintained unless notice of the time, place, and cause of the injury is given to the employer within 30 days after the accident, and in case of the death of an injured employe, "with out having given the notice, and without having been for ten days at any time after the injury of sufficient capacity to give the notice, his execu. tor or administrator may give such notice within On appeal, see "Appeal," 78-89. 30 days after his appointment." Held that, in a case of instantaneous death of an employe, notice given by the administrator within 30 days after Decision. Declaration. his appointment would support an action, under See "Pleading," 2-4. section 2, by the widow. -Daly v. New Jersey As evidence, see "Evidence," 10-17. 2. Evidence that deceased had been in the habit of turning his wages over to his wife was properly admitted for the purpose of showing the loss sustained by deceased's family because of his death.-Lake Erie & W. R. Co. v. Mugg, (Ind. Sup.) 31 N. E. 564. Measure of damages. 3. In an action against a railway company for the death of plaintiff's intestate, deceased's administratrix is entitled to recover for the loss of the support of the widow and minor children of deceased, as well as for what deceased would probably have accumulated had he lived.-Lake Erie & W. R. Co. v. Mugg, (Ind. Sup.) 31 N. E. 564. Decedents. See "Executors and Administrators." DECEIT. See, also, "Fraudulent Conveyances." Dedication. Of highway, see "Highways," 1, 2. ances;' DEED. See, also, "Covenants:" "Fraudulent Conver- 1. Defendants' grantor bought a tract of land described as beginning 10 chains south of the N. E. corner of a certain quarter section, running thence south 5 chains and west 10 chains, so as to include 5 acres. He then platted into lots 30 feet wide the N. of the S. E. % of the N. E. of said quarter section. As the quarter section contained more than 160 acres, the north line of the platted land was 3 feet south of the deeded land. Held, that a purchaser of one of the northern tier of lots, whose deed simply called for the lot by number, and who had actual notice that there was a 3-foot strip north of his lot, and who had possession of 30 feet without said strip, took no title to said 3-foot strip.-Mendel v. In use of trade-mark, see "Trade-Marks and Whiting, (II. Sup.) 31 N. E. 431. Trade-Names." False representations. 1. An action for damages against the officers of a foreign corporation for fraudulently inducing the plaintiff to take its notes by the false representations of its officers as to the amount of its paid-up capital stock, cannot be maintained against them by proof of the falsity of their statement of the amount of its paid-up capital stock, filed with the state commissioner as required by St. 1884, c. 330, § 3, since such statement is not addressed to or intended for the public.-Hunnewell v. Duxbury, 28 N. E. 267, 154 Mass. 286; Id., (Mass.) 31 N. E. 700. 2. A statement made to plaintiff by one of the directors, to the effect that they had filed a statement, and were now prepared to go on and .push the business, does not show an intention to Influence plaintiff by means of the allegations contained in the statement.-Hunnewell v. Dux bury, (Mass.) 31 N. E. 700. 3. Where the owner of a horse represents him to be perfectly sound, that a tumor which had been removed from him was due solely to the bursting of a blood vessel, and that he has since entirely recovered, whereas, in fact, the tumor was the result of a constitutional disease, which rendered him practically worthless, and the owner knew this, and expressed himself as satisfied to have gotten rid of a horse which had begun to fail, the purchaser is entitled to recover as for deceit.-Timmis v. Wade, (Ind. App.) 31 N. E. 827. Delivery and acceptance. 2. An old man executed a deed conveying certain land to his minor nephews and nieces, and reserving a life estate in himself. He handed the deed to a third person, who kept it until after his death, when, at the instigation of his sole devisee, it was given to his widow, and by her destroyed. The grantor had said that he wanted the deed kept for the children. Held, that the delivery was sufficient to pass title. WILKIN, J., dissenting. -Douglas v. West, (Ill. Sup.) 31 N. E. 403. Construction and effect. 3. A deed purporting to lease, demise, and let unto a certain person and his wife certain land, and to convey the same to them, to have and to hold during their natural lives, and to their heirs after them, free from the control or interference of any and all persons, is within Pub. St. c. 126, § 4, providing that when lands are given to a person for life, and after his death to his heirs in fee, "the conveyance must be construed to vest an estate for life only in such first taker, and a remainder in fee simple in his heirs;" and the heirs, therefore, in such a case, cannot be deprived of such remainder by a subsequent deed from the grantor to the grantees, purporting to convey the same to the grantees.-Sims v. Pierce, (Mass.) 31 N. E. 718. 4. Where there is no ambiguity in the description contained in a deed, and none is shown when the description is applied to the land, the intent must be ascertained from the language contained in the deed.-Muldoon v. Deline, (N. Y. App.) 31 N. E. 1091. 5. Where husband and wife execute a warranty deed of the husband's property, which contains the usual words of grant, followed by a clause, "intending hereby to convey absolutely" all the interest of the wife in the property, such clause is mere surplusage, and does not limit the estate conveyed to the inchoate interest of the_wife.-Davenport v. Gwilliams, (Ind. Sup.) 31 N. E. 790. 6. The fact that a deed described the property conveyed as commencing at a known monument on the shore of a pond, and running thence "along said pond," does not show an intention to convey only to the shore. 11 N. Y. S. 87, reversed.-Gouverneur v. National Ice Co., (N. Y. App.) 31 N. E. 865. When taking allowable. Rev. St. 1881, § 423, provides that depositions may be taken by either party without order of court, and prescribes when they may be used on the trial. Section 432 provides that, when a deposition is offered, it must appear to the satisfaction of the court that the cause for taking and reading it still exists. Rev. St. 1843, § 264, made the causes for using depositions which are prescribed in section 423 the causes also for taking such depositions. The Revision of 1852 failed to enumerate any causes for taking depositions, but did provide for the cases in which they might be read. Section 432 is copied from the Revision of 1852. Held, that the nonexistence of such a state of facts as would authorize the reading of a deposition on a trial would not prevent a party from taking such deposition, since he was judge of the necessity.-Wehrs v. State, (Ind. Sup.) 31 N. E. 779. DESCENT AND DISTRIBUTION. See, also, "Executors and Administrators;" "Wills." Distribution of French spoliation claims, see "Claims against United States." Land conveyed in trust. 1. A trust deed provided that, if the grantors' daughter survived the other beneficiaries and the grantors, the trustees might, with her consent, sell the lands which constituted the trust property, and invest the proceeds in stocks and personal securities; and, in the event of her death, the stocks and securities were to be divided "in the same manner and among the same persons as is herein before provided respecting said premises and the rents and income thereof." The provision referred to directed the trustees to "convey the premises in fee simple to the heirs at law of said surviving daughter in such shares and in the same manner as they would have held the same by the laws of Massachusetts if the said surviving daughter had died seised thereof in fee simple. Held that, where the daughter left no issue, and no father or mother, and no issue of any deceased brother or sister, her brother, being the only surviving child of the grantors, was entitled to all of such stock and securities except the sum of $5,000 to the husband, under Pub. St. c. 125, § 1, cl. 5.-In re Smith, (Mass.) 31 N. E. 387. Rights of abandoned wife. husband, and who has thereafter been guilty of 2. A wife who has been abandoned by her adultery, but not for several years immediately preceding the husband's death, is not within Rev. St. 1881, § 2496, which prohibits a wife who "shall have left her husband, and shall be living at the time of his death in adultery," from sharing his estate.-Zeigler v. Mize, (Ind. Sup.) 31 N. E. 945. Action against heirs for decedent's debts. 4. 2 Rev. St. p. 452, § 33, as amended by Laws 1859, c. 110, which declared that heirs should not be liable for a debt of their decedent unless it should appear that the creditor had been unable to collect the debt out of decedent's personalty, merely changed the manner and conditions of enforcing a liability of heirs existing under previous statutes, and vested in them no "right" or "defense," within the meaning of Code Civil Proc. § 3352, declaring that nothing in the Code should impair any right or defense already accrued; so that section 1848 of the Code, allowing the creditor of a decedent, in an action against the heirs, to show that he "will be," as well as that he has been, unable to collect his debt from decedent's personalty, governs an action against heirs of a decedent who died before the Code was enacted.-Read v. Patterson, (N. Y. App.) 31 N. E. 445. 5. In an action by a creditor of a decedent to establish the claim against the heirs under Code Civil Proc. § 1848, requiring him to show that he has been or will be unable, by due diligence, to collect his debt from decedent's personalty, the court found that the debts of the estate amounted to $95,000 and the assets to $33,000; but it ap peared from the testimony of an executor, who was the only witness called by plaintiff, that two of the claims counted by the court as debts, and amounting to $32,000, had been rejected by him; that they had not been verified as required by statute; and that no proceedings had been taken to collect them. The court found that, if plaintiff had used due diligence in having the assets applied to the debts, 33-95 of them would have been paid, and gave judgment against defendants for 62 95 of his claim. Held, that the judgment was properly reversed, as the two claims, amounting to $32,000, should not have been considered as debts.-Read v. Patterson, (N. Y. App.) 31 N. E. 445. DIVORCE. 6. Under Code Civil Proo. § 1848, requiring a creditor of a decedent, in an action against the heirs, to show that decedent's assets were in- Jurisdiction. sufficient to pay the debt, or that he has been or 1. Where complainant in a divorce suit came will be unable, with due diligence, to collect his to the state two years before he began suit, with debt, by proceedings in the surrogate's court and the intention, as he swears, of becoming a resiby action at law, and declaring that "the exec-dent, and he testifies that such has been his inutor's or administrator's account, as rendered to tention ever since, the fact that during said time, and settled by the surrogate, may be used as ev and particularly during the first year, he was idence of any of the facts required to be shown absent much of the time on visits to his former by this section," a mere list made by an executor home, in another state, where his parents reof claims which have come to his knowledge, sided, is not sufficient to show that he was not a though annexed to his account filed with the sur-resident of the state for a year before suit.-Alrogate, is not evidence of the amount of the estate's bee v. Albee, (Ill. Sup.) 31 N. E. 153. indebtedness, where the validity of the claims was not passed on in any way by the surrogate. -Read v. Patterson, (N. Y. App.) 81 N. E. 445. See "Replevin.” Detinue. Devise and Legacy. See "Wills." Discharge. See "Release and Discharge." DISCOVERY. Examination of party before trial- Defendant examined plaintiff before trial, and his examination was filed and published. Defendant having removed the examination from the files, the plaintiff, six days before the trial, moved for an order directing defendant to return the paper to the files or permit plaintiff to inspect it. The court overruled the motion on the defendant's promising to give plaintiff an opportunity to inspect the examination if it was offered in evidence. The examination was offered in evidence by the defendant without objection, but it did not appear that plaintiff had been allowed to inspect it. Held, that overruling said motion constituted reversible error.-Grant v. Davis, (Ind. App.) 81 N. E. 587. Dismissal. See "Practice in Civil Cases," 1. DISTRICT AND PROSECUTING Powers and duties. 1. The duty of a district attorney, under 1 Rev. St. p. 383, § 89, to conduct prosecutions, embraces whatever is properly essential to bring a criminal to trial.-People v. Board Sup'rs Columbia County, (N. Y. App.) 31 N. E. 322. Compensation. 2. Pub. St. o. 146, § 41, declares that "a divorce decreed in another state according to the laws thereof, and by a court having jurisdiction of the cause and of both the parties, shall be valid." A man living in Massachusetts moved to Colorado. His wife refused to follow him, and he obtained in Colorado a divorce for desertion, which was valid according to the laws of that state. The wife never was in Colorado, but the complaint and the summons were served on her in Massachusetts. Held that, as the domicile of the wife followed that of her husband, the Colorado court had jurisdiction of the parties, within the meaning of said statute.-Loker v. Gerald, (Mass.) 81 Ñ. E. 709. Grounds-Desertion. 3. In a suit by a husband for divorce for desertion, the evidence showed that the parties had lived together on the farm of his father; that the wife and her mother-in-law did not get on well together; that the wife moved to town, where the husband spent some time with her; that be wanted to live again with his parents; that she wrote him that she had left the farm for the last time; that they never lived together again, but that she afterwards went to the farm and other places to find him, and for several months after writing said letter made repeated efforts to return to her husband, but without success, he wholly failing to receive her back. Held, that the wife was not guilty of having "willfully deserted or absented herself from the husband, without reasonable cause, for the space of two years," within the purview of Rev. St. c. 40, § 1, making such desertion a ground of divorce.—Albee v. Albee, (Ill. Sup.) 81 N. E. 153. Alimony. 4. Under Rev. St. 1891, a. 40, 18, which provides that the court granting a divorce "may on application, from time to time, make such alterations in the allowance of alimony as shall appear reasonable and proper," the court may make such alteration after expiration of the term at which the divorce was granted, where the circumstances of the parties have changed since the divorce. 35 Ill. App. 544, affirmed.Cole v. Cole, (Ill. Sup.) 81 N. Ê. 109. 5. The adultery of the wife after decree granting her a divorce and awarding her alimony is not cause for altering the decree as to the alimony, where it is not shown whether the alimony was granted the wife merely for her support, or on account of property which the husband derived from her, and it appears that the husband, at the time he petitions for such alteration, has only paid a small part of the alimony due up to that time. 35 Ill. App. 544, affirmed.-Cole v. Cole, (Ill. Sup.) 31 N. E. 109. Documents. 2. Where a district attorney necessarily incurs expenses in following a fugitive beyond the Jurisdiction of the United States, he is entitled to reimbursement by the county; 1 Rev. St. p. 885, 3, making the county liable for all "expenses necessarily incurred," and for moneys As evidence, see "Evidence," 20-25. necessarily expended by any county officer in executing the duties of his office. 8 N. Y. S. 752, affirmed.-People v. Board Sup'rs Columbia County, (N. Y. App.) 31 N. E. 322. See "Drainage." Ditches. Lien of assessment, see "Subrogation." DOWER. Release-Power to release by attorney in fact. 1. Under Laws 1878, c. 300, providing that a married woman "may execute, acknowledge, and deliver her power of attorney with like force and effect, and in the same manner, as if she were a Repairs. single woman," such a married woman may release her dower by an attorney in fact.-Wronkow 9, 1875, were not especially constructed under v. Oakley, (N. Y. App.) 31 N. E. 521; In re Wolff, Id. By husband under power of attor ney. 2. Where a married woman has power to release her dower by an attorney in fact, she may constitute her husband her attorney for the purpose.-Wronkow v. Oakley, (N. Y. App.) 31 N. E. 521; In re Wolff, Id. 3. A wife executed a power of attorney authorizing her husband to sell and convey all lands belonging to her individually or jointly with another, and "for the purpose aforesaid," and in her name, and as her act and deed, to execute "all necessary or proper contracts, deeds, convey ances, releases, releases of dower and thirds, or other instruments for conveying, surrendering, and relinquishing all or any part of my estate, right, title, and interest, whether vested or contingent, choate or inchoate, therein. " Held, that the instrument by its terms authorized the husband to execute a release of dower in his lands for the wife. 19 N. Y. S. 51, reversed.Wronkow v. Oakley, (N. Y. App.) 81 N. E. 521; In re Wolff, ld. DRAINAGE. Right to jury in proceedings to establish, see "Jury," 9. Authority of drainage commissionersNotice to landowners. 1. The commissioners of a drainage district organized under the act of May 29, 1879, which gives the commissioners no authority to do any act materially affecting the character or cost of the drainage improvements except upon notice to the landowners and opportunity for them to be heard, have no power to contract for the removal of a dam built by private parties, and to issue warrants in payment for the same, without no. tice to the landowners.-Badger v. Inlet Drainage Dist., (Ill. Sup.) 31 N. E. 170. Establishment of drains. 2. The fact that the surface of the land at the mouth of a sewer is lower than at its beginning does not prove that the sewer carries the water according to its natural drainage, where it appears that the land between the two points is so elevated that the sewer had to be sunk nine feet in order to secure a proper fall.-Dierks v. Commissioners of Highways Tp. Addison, (Ill. Sup.) 31 N. E. 496. 3. Laws 1883, p. 139, § 8, which authorizes commissioners of highways to enter upon land adjacent to any highway for the purpose of open ing drains or ditches to carry off the water from the highway, or to drain any slough or pond on such highway, does not authorize them to enter land adjacent to a highway for the purpose of car rying over such land the sewage deposited on such highway by the drains of an incorporated village.-Dierks v. Commissioners of Highways Tp. Addison, (Ill. Sup.) 31 N. E. 496. 4. A finding and judgment against remonstrants establishing a ditch necessarily involves a judgment for costs; Rev. St. 1881, § 4276, providing that, "when the finding of the court is against the remonstrance for any cause, * he shall pay the cost occasioned by the remonstrance."-Perkins v. Haywood, (Ind. App.) 31 N. E. 670. * * 3. The circuit court has jurisdiction of the construction of drains, and objections to its assumption thereof in a specific case must be made directly by appeal, and a party cannot, after judg. ment, make collateral objection to its authority to direct the construction of a particular drain, which it has assumed, by holding the petition sufficient to give the jurisdiction.-Perkins v. Haywood, (Ind. App.) 31 N. E. 670. 6. Since drains constructed under Act March the supervision of the commissioners charged with their establishment, the county surveyor was not obliged to wait until such drains were entirely completed before having them repaired, as commanded by Elliott's Supp. 1889, § 1193, but might take possession, for that purpose, of the completed portions.-Artman v. Wynkoop, (Ind. Sup.) 31 N. E. 468. 7. Under Elliott, Supp. § 1193, which rein his county in repair, the surveyor is the judge quires the county surveyor to keep the ditches of the means to be employed to accomplish the work, and landowners cannot escape liability on assessments because the workmen employed were paid by the day, and no competition was invited. Scott v. Stingley, (Ind. Sup.) 31 N. E. 953. Warrant of drainage district-Estoppel to deny validity. 8. Where the commissioners of a drainage district have illegally issued warrants in payment for the removal of a dam, the fact that they have availed themselves of the removal of such dam does not estop either the commissioners or the district from denying the validity of the warrants. -Badger v. Inlet Drainage Dist., (I11. Sup.) 81 N. E. 170. Assessments. 9. Under Act March 9, 1875, (Acts 1875, p. 97,) providing that assessments for the construction of ditches should be placed on the tax duplicate and collected as "other taxes," but not providing that they should have the lien of taxes, a mortgage executed prior to such assessments takes precedence over them.-Pierce v. Etna Life Ins. Co., (Ind. Sup.) 81 N. E. 68. 10. Under the drainage act of April 8, 1881, as amended by act of March 8, 1883, providing that a drainage commissioner may levy and enforce assessments from time to time as the work of building a drain progresses, such commissioner has authority to exercise a reasonable discretion in levying assessments to secure money to pay for work in progress; the statute, considered as an entirety, not inhibiting the exercise of such authority until the money is required to pay for work actually done. -Racer v. State, (Ind. Sup.) 31 N. E. 81; Buckles v. Same, Id. 86; Crumley v. Same, Id.; Constant v. Same, 1d.; Fulkerson v. Same, Id.; Johnson v. Same, Id. Brown v. Same, Id. Kitzmiller v. Same, Id.; Lock v. Same, Id.; McKay v. Same, Id.; Inman v. Same, Id.; Edwards v. Same, Id.; Barnes v. Same, Id.; Martin v. Same, Id.; Wayman v. Same, Id.; Thornburgh v. Same, Id.; Fishback v. Same, Id.; Wilson v. Same, Id.; Caldwell v. Same, Id.; Stafford v. Same, Id.; Holcraft v. Same, Id.; Stewart v. Same, Id. 11. Even though the contract entered into between a drainage commissioner and the contractor who undertakes to build the ditch provides that no part of the work shall be accepted as completed until all the ditch shall have been completed according to specifications, yet the commissioner has the right to provide in advance, by levying and enforcing assessments, the means of paying the contractor when the latter's claim matures.Racer v. State, (Ind. Sup.) 31 N. E. 81; Buckles v. Same, Id. 86; Crumley v. Same, Id.; Constant v. Same, Id.; Fulkerson v. Same, Id.; Johnson v. Same, Id.; Brown v. Same, Id.; Kitzmiller v. Same, Id.; Lock v. Same, Id.; McKay v. Same, Id.; Inman v. Same, Id.; Edwards v. Same, Id.; Barnes v. Same, Id.; Martin v. Same, Id.; Wayv. Same, Id.; Thornburgh v. Same, Id.; Fishback v. Same, Id.; Wilson v. Same, Id.; Caldwell v. Same, Id.; Stafford v. Same, Id.; Holcraft v. Same, Id.; Stewart v. Same, Id. man 12. Where the work of building the ditch is not being done in accordance with the terms of the contract, the failure of the commissioner to perform his duty in compelling a substantial compliance therewith will not constitute a de |