Corey v. Lugar. not be undertaken during that year, and the council, with the consent of Allen, the contractor, made the desired alteration. The time for making the improvement being thus postponed for the accommodation of the appellant, and at his request, we do not think he can now be heard to question the passage of the necessary ordinance, if an ordinance. were necessary, or the sufficiency of the notice of the let ting of the contract. The petition clearly implied his consent to the performance of the contract after the lapse of that year. The judgment below is affirmed, with costs. Opinion filed at November term, 1877. Petition for a rehearing overruled at May term, 1878. COREY V. LUGAR. CONTESTED ELECTION.-Appeal Bond.-The fact that, on appeal to the cir cuit court, in a proceeding to contest an election, the appeal bond is made payable to the State, instead of to the opposite party, is not ground for dismissing the appeal. SAME.-Jury Trial.-The refusal of the court to grant a jury trial in such case is not error. From the Grant Circuit Court. J. L. Custer, for appellant. PERKINS, J.-Proceeding to contest an election. Appeal to the circuit court. Motion in that court to dismiss the appeal on account of a defect in the appeal bond. The defect alleged was, that the bond was made payable to the State instead of to the appellee. The motion was overruled. There was no error in this. Sec. 790, 2 R. S. 1876, p. 311; Acts 1875, Reg. Sess., p. 112; Railsback v. Greve, 58 Ind. 72; Fuller v. Wright, 59 Ind. 333. Ford v. Teagle et al. The appellant moved for a trial by jury. was denied. There was no error in this. 17 Ind. 254; Allen v. Anderson, 57 Ind. 388; State, 61 Ind. 392. The motion Knox v. Fesler, Reynolds v. The The cause was tried by the court, who found for the appellee upon the evidence, and overruled a motion for a new trial, made upon the grounds that the decision of the court was not sustained by evidence, and was contrary to law. The evidence was conflicting, and we cannot say the decision upon it was erroneous. The judgment is affirmed, with costs. FORD V. TEAGLE ET AL. WILL.-Establishing Will, which has been Lost or Destroyed.-Evidence.— Where, in an action to establish a will alleged to have been destroyed by others than the testator, proof of its destruction or loss is obviated by agreement of the parties, and, from the evidence of the witnesses to the alleged will, it may be reasonably inferred that the will attested by them was the same as one which the scrivener has testified he prepared at the request of the testator, evidence by such scrivener of its contents is competent.' From the Randolph Circuit Court. C. C. Binkley and E. L. Watson, for appellant. M. Way, J. J. Cheney and W. A. Thompson, for appellees. WORDEN, J.-This was a complaint by the appellant against the appellee, to establish the will of Thomas Teagle, deceased, which was alleged to have been destroyed since its execution by others than the testator. Demurrer to the complaint for want of sufficient facts overruled, and exception. Ford v. Teagle et al. Issue; trial by the court, resulting in a finding and judgment for the defendants. New trial denied. On the trial it was proved by Andrew Meredith, that in August, 1864, he wrote a will for the decedent at his request, but it does not appear to have been signed by the deceased in the presence of Meredith or attested by witnesses. The will was written at the house of Meredith, in Wayne township, Wayne county, Indiana, and the deceased took the will away and started to William Conner's with it. The witness saw the deceased about an hour afterward, just as he had come out of the house of Conner, with Mr. Conner and John Meredith. The witness never saw the will after the deceased took it away from his house. It was proved by William Conner, that he lived about a mile from Andrew Meredith's; that in August, 1864, the deceased called at his house and desired him to attest his will. The evidence is a little uncertain as to whether Teagle signed the will at Conner's or had signed it before. Conner said that "Thomas Teagle's name was to it." Conner and John Meredith signed the will as witnesses, at the request of Teagle. John Meredith testified to the attestation of the will by himself and Conner, and his impression was that the will was signed by Teagle at Conner's house. At the proper time the plaintiff offered to prove by Andrew Meredith the contents of the will thus written by him for the deceased; but on objection being made the evidence was rejected, apparently on the ground that the witness could not state of his own knowledge that the will which he had prepared was the same will which had been thus attested at Conner's, the witness not having seen the will which he had prepared, since the deceased took it away. It may be observed that the objection to the evidence was not made on the ground that the contents of the will could not be proved without first having shown its destruction or loss and proper search. An agreement of The Kentucky Lead and Oil Co. et al. v. The New Albany Water-Works. the parties, shown by the bill of exceptions, obviated the necessity of first making such preliminary proof. We think the evidence offered was competent and should have been received. Though the witness may not have known that the will which he wrote was the same as the one which was thus attested, it might, from the evidence given, have been reasonably inferred that it was. There was certainly evidence tending to show that it was; and, if it was the same will, it was important to establish its con tents. The appellees have assigned a cross error upon the overruling of the demurrer to the complaint, but they have filed no brief pointing out the supposed error, and we see none. The judgment below is reversed, with costs, and the cause remanded for a new trial. THE KENTUCKY LEAD AND OIL CO. ET AL. v, THE NEW ALBANY WATER-WORKS. MECHANIC'S LIEN.-Material Man's Lien.- Water-Works Companies.-Manufacturing Companies.—A water-works company, incorporated under the act of March 6th, 1865, 1 R. S. 1876, p. 329, in relation thereto, is not a manufacturing company under the act of May 20th, 1852, 1 R. S. 1876, p. 619, authorizing the incorporation of such companies, and its buildings, etc., are not subject to the enforcement of a mechanic's lien for materials furnished in constructing its pipes, mains, etc. From the Floyd Circuit Court. W. J. Hisey, for appellants. A. Dowling, for appellee. PERKINS, J.-This action was commenced in the Floyd Circuit Court by Conger & Howard, against the New The Kentucky Lead and Oil Co. et al. v. The New Albany Water-Works. Albany Water-Works, the Kentucky Lead and Oil Company, the Ludlow Valve Company, Richard Wood & Co., De Witt C. Hill and Michael Zier, partners, Fred. D. Conner, assignee of Hill & Zier, in bankruptcy, and other defendants who need not be named. The object of the suit was to enforce a mechanic's lien held by Conger & Howard on two buildings constructed by them, situated on two separate and distinct lots of land, in Floyd county, owned by the New Albany WaterWorks. The original plaintiffs, Conger & Howard, alleged in their complaint, that Hill & Zier agreed for a valuable consideration to construct and build a complete system of works for the defendant, the New Albany Water-Works, and that they, the said Conger & Howard, at the request of Hill & Zier, did certain work, and furnished certain materials to be used, and which were used, in the construction of the reservoirs and pumping house; that a certain sum of money was due to them from Hill & Zier; and that they had duly filed, in the office of the recorder of Floyd county, notice of their intention to hold a lien on these buildings. The Kentucky Lead and Oil Company, the Ludlow Valve Company, and Richard Wood & Co., were made defendants to answer as to any interest they might have in the property covered by Conger & Howard's lien. The Kentucky Lead and Oil Company and Richard Wood & Co. each filed a cross-complaint, consisting of a single paragraph, claiming liens under section 647 of the code. The Ludlow Valve Company filed its cross complaint in two paragraphs, the first of which asserted the existence of a mechanic's lien, and the second attempted to charge the defendant, the New Albany Water-Works, upon a notice under section 649. Separate demurrers were filed by the New Albany Water |