appellee, but the only valid charge of negligence contained in the complaint is the allegation that, "after this defendant was cognizant of the fact that the aforesaid Virgil Kennedy was in imminent peril and great danger said defendant continued to operate its machinery plant for a long period of time, to wit, for a period of 15 minutes," whereby said Virgil Kennedy was drawn into said clay and smothered to death. The above charge of negligence is, and must be, predicated upon knowledge of the appellee of the imminent peril or great danger of the said deceased, knowledge of his perilous situation from which he could not reasonably be expected to extricate himself. If there was no knowledge, either actual or constructive, there could be no negligence as to the matter charged. The only testimony which in any way bears upon this charge was given by the witness Foos, the employee who asked the deceased to help him shovel said clay. He testified that, after said clay had "caved" and he saw that it had caught the deceased, he "rang a bell"; that he twice thereafter rang said bell before the machinery stopped. There is no evidence as to the kind, character, or use for which the said bell was intended, or where the same was located. There is no evidence that it was an alarm or signal bell to the engineer or person in charge of the operating of the machinery, signaling him to stop the machinery. Also there is no evidence that said alarm, given as testified to by said witness was heard by any one having authority, or whose duty it was to stop said machinery upon hearing said bell. The evidence wholly fails to establish any negligence, as against appellee. Other alleged errors are presented by the appellant, but, as there was a failure of proof, as to the essential fact, as above noted, other alleged errors are of no controlling influence, and the court did not err in giving said instruction. Affirmed. DAUSMAN, J., absent. Burns' Ann. St. 1926, § 6282, are at an end when report of commissioners has been filed under section 6173. 2. Drains17-Compensation of former drainage commissioner, for services in preparation for trial of remonstrance in drainage proceeding after filing of report, is matter of contract (Burns' Ann. St. 1926, §§ 6173, 6282). Where report of drainage commissioners has been filed, compensation of former drainage commissioner for subsequent services rendered in preparation for trial of remonstrance is matter of contract, independent of Burns' Ann. St. 1926, §§ 6173, 6282, and is not limited to statutory compensation. 3. Witnesses 26-Former drainage commissioner, testifying on trial of remonstrance against establishing drain, held entitled only to ordinary witness fees and mileage. Former drainage commissioner, testifying to facts involved in trial of remonstrance against establishment of drain after filing of commissioner's report, held entitled to recover only ordinary witness fees and mileage. Appeal from Vanderburgh Circuit Court; E. H. Ireland, Special Judge. Claim by Edwyn E. Watts for services rendered and expenses incurred as Drainage Commissioner subsequent to the filing of the Drainage Commissioners' report, opposed by Samuel W. Hart and others. From an adverse judgment, claimant appeals. Affirmed. Thomas Duncan, of Princeton, for appellant. Marshall R. Tweedy, of Evansville, for appellees. THOMPSON, J. Appellant filed his claim for services rendered and expenses incurred by him subsequent to the filing of the report of drainage commissioners in a certain drainage petitioned for by Oscar R. Heim et al. in the Vanderburgh circuit court. The services rendered were rendered in preparation for the trial of remonstrances filed against the establishment of such drain, and consisted, among other items, of 74 days' services in obtaining additional data and preparing the same for testimony, for which appellant claims $25 per day, and 47 days' services as a witness in court giving testimony in the hearing of said report and the remonstrances adAppellate Court of Indiana, in Banc. Dec. 13, dressed thereto, at $50 per day. Appellant WATTS v. HART et al. (No. 12915.) 1927. 1. Drains contends that these services were rendered as a drainage commissioner and civil engineer. Drainage commissioners and engineers are entitled to such compensation as the court or board of commissioners may allow under the provisions of section 6282, Burns' 1926. But we do not understand that the services for Services of drainage commissioners for which they are entitled to compensation under For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (159 Ν.Ε.) which he seeks to recover were rendered by him as a drainage commissioner. Section 6173, Burns' 1926, provides that: * * * "When the drainage commissioners file their report, they shall include therein an itemized account of the costs and expenses incurred by the commissioners in making the survey and assessments and (in) the completing and filing of their report, and if, at the time of the approval thereof, the petitioner or petitioners shall have on file a bond as provided by law, in order that the county may be fully subrogated, the court shall allow said costs and order the same advanced and paid out of the county treasury." [1-3] This provision of the statute provides for the payment of expenses and per diem of the commissioners and the civil engineer up to and including the filing of their report. As such drainage commissioners, their services are then at an end. Whatever compensation such drainage commissioners, or any one of them should receive for services in the preparation for the trial of a remonstrance in a drainage proceeding is a matter of private arrangement between them respectively, and the persons by whom they are employed. As witnesses in court testifying to the facts involved in the trial of such remonstrance, the drainage commissioners are only entitled to $1.25 per day and 5 cents per mile for the miles necessarily traveled during the time they were in attendance at court, the same as any other witness. We know of no statute that would authorize appellant to recover any other compensation as part of the costs of the trial of a remonstrance against the establishment of a drain. As to appellant's right to charge for expert testimony as a condition to giving it, see Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75. Judgment affirmed. DAUSMAN, J., absent. SOUTHERN SURETY CO. v. MERCHANTS' & FARMERS' BANK OF AVILLA et al. (No. 12787.) struction bonds and contracts for construction of roads were executed and on September 7, contractor made written applications for bonds, pursuant to oral agreement, containing assignments, the instruments were executed as part of same transaction and agreement, and had to be taken and construed together as one transaction and agreement. 2. Subrogation 36-Bank loaning money to construct highway, taking assignment of highway funds from contractor, being bound to know bonds were required, took assignment with knowledge of surety's rights. Bank loaning money to highway contractor to carry on construction, and taking assignment of funds to become due contractor, was bound to know that under law contractor was required to give bonds to complete and construct roads and to pay for labor and material, and took assignment with knowledge of rights surety on bonds had by virtue of suretyship. 3. Subrogation 26-Surety, in discharging principal's obligation for performance of which surety is bound, is not "volunteer." Surety in discharging an obligation of principal for performance of which surety is bound under his obligation of suretyship is not "volunteer" in discharging such an obligation. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Voluntary.] 4. Subrogation 7(1)-Surety's right of "subrogation" is right to resort to funds, securities, and remedies which creditor may assert against debtor. Surety's right of subrogation, when it becomes capable of enforcement, is right to resort to funds, securities, and remedies which creditor is capable of asserting against debtor, and surety must not be treated merely as being subrogated to rights of principal. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Subrogation.] 5. Subrogation 36-Bank loaning money to contractor to construct roads, contractor assigning funds becoming due, could not knowingly permit contractor to use funds for other purposes to surety's detriment. Bank loaning money to highway contractor for purpose of carrying out contract with knowledge that contractor had given bond with surety for completion of work and payment of debts was under duty of not knowingly or negligently permitting money loaned or funds received by it for work done, assigned to bank as Appellate Court of Indiana, in Banc. Dec. 7, collateral, to be paid out for other purposes 1927. 1. Highways113(5) Contractor's agreement to make application to surety company for bonds and subsequent applications must be construed together. Where contractor on September 5 orally agreed to execute written applications for construction bonds and that applications should contain assignments of highway funds to become due contractor, and on September 6, con and not applied on contractor's debt to bank, to detriment of surety, and where bank permitted contractor to pay out money for other purposes, it could not claim highway funds in hands of county as against surety. Appeal from Noble Circuit Court, Arthur F. Biggs, Judge. Two actions by the Southern Surety Company against the Merchants' & Farmers' For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Bank of Avilla and others, in which the defendants named and others filed cross-complaints, which actions were consolidated in the trial court. From the judgment, plaintiff appeals, and defendants assign crosserror. Reversed, with directions. John R. Browne, of Marion, Wm. M. McLaughlin, of Des Moines, Iowa, and Fred L. Bodenhafer, of Kendallville, for appellant. Redmond & Emerick, of Kendallville, and Luke H. Wrigley, of Albion, for appellee. MCMAHAN, J. Appellant commenced two actions in the Noble circuit court against Merchants' & Farmers' Bank of Avilla, hereafter referred to as appellee, and others, including the board of commissioners, the auditor and the treasurer of Noble county, to determine priority rights in, and the ownership of, certain unexpended highway funds, including retained percentage on estimates allowed and partially paid, arising from the sale of bonds on account of the construction of the Rich and Krieger roads in said county. One action related to the unex pended Rich road funds, aggregating $16,191.71, and the other to the unexpended Krieger road funds, amounting to $13,652. The actions were consolidated in the trial court. Appellant claims ownership of said funds, subject to the rights of certain claimants for labor performed and materials furnished in the construction of the said roads, by virtue of its equity of subrogation, as surety on the construction bonds given to the county by Baker, Agerter & Thompson, Inc., the contractor on each of said roads, and also by virtue of two assignments executed to it by said contractor of the specific funds arising from the sale of the bonds issued for the construction of said roads, each of which assignments is alleged to have been executed as a part of the transactions by which appellant became surety on said construction bonds, and in consideration of its becoming such surety, and as a part of the transaction of the execution of said contracts between the commissioners and said contractor. Appellee claims to own said funds by virtue of two subsequent assignments thereof executed to it by the contractor. These assignments are alleged to have been made to secure loans from the bank to the contractor to provide funds with which to construct said roads. Many of the other defendants waived their claims to said funds and filed cross-complaints on said bonds against the contractor and appellant as surety to recover for their labor and materials. Other defendants suffered default. The contractor became financially involved and was unable to complete the roads. The board of commissioners declared the contract for the Krieger road forfeited and relet the work to another contractor, for which work the commissioners paid the last contractor $32,880.80. Appellee by cross-complaint, and the state, on relation of appellee, by crosscomplaint, sought a recovery of the funds for which appellant sued; for a determination of the priorities of the claims made by the various parties, for a personal judgment against appellant for the amount owing to appellee by the contractor, in excess of the amount remaining in the hands of the county treasurer, and for a personal judgment against appellant for the $32,880.80 paid to the contractor who furnished the work. The county officials are ready to pay the funds in their hands to appellant or to appellee as may be finally adjudged. The facts were found specially and are in substance as follows: On September 6, 1922, the board of commissioners of Noble county awarded the contracts for the construction of said roads to Baker, Agerter & Thompson, Inc., hereinafter referred to as contractor. The contract price for the Rich road was $47,551, and for the Krieger road, $105,473. Contracts were on said day en tered into for the construction of each of said roads, the contractor agreeing to furnish all necessary labor and material and construct each road in accordance with the plans and specifications which were made a part of each contract. The plans and specifications, which became a part of the contracts, provided that if the contractor for any reason failed to complete the work, the engineer in charge after ten days' notice to contractor and its surety was given authority to complete the work and appropriate and use all material and equipment on the grounds, and enter into such contracts therefore as in his opinion were proper, cost of completion to be deducted from any money due or to become due the contractor. It provided that no money except the estimates for first month was to become due, if the engineer so elected, until the contractor satisfied the engineer he had paid or settled for all material and equipment used and labor done, the engineer being given authority to pay such bills and deduct same from estimates. Twenty per cent. of all estimates was to be reserved until final completion and acceptance of the work. The county sold bonds for the construction of the Rich road in the sum of $49,920, and for the Krieger road in the sum of $110,400, the proceeds of such sales being in the hands of the county treasurer except as hereafter stated. Final payment was not to be made until contractor had paid all bills for material, labor, tools, implements, teams, and other things needful or necessary in doing the work. On August 7, 1922, the contractor, in anticipation of having appellant become surety on its contractor bonds and to induce ay pellant to become such surety, executed on its own behalf and also caused Baker, Agerter and Thompson as individuals to execute a contract indemnifying appellant from loss. On September 5, 1922, George C. Baker for said contractor orally agreed to make written application to appellant to execute a contractor's bond for each of said roads, and agreed that in such applications the contractor would assign to appellant as indemnity all funds and money due or to become due the contractor for the construction of the roads. And on the next day, the contractor as principal, with appellant as surety, executed a bond in the sum of $98,500 for the completion of the Rich road, and a bond in the sum of $220,000 for the completion of the Krieger road. Each of said bonds provided it should be void and of no effect if the road was completed according to contract, and if the contractor paid all debts contracted in the prosecution of the work, including labor and material furnished, and for the board of laborers employed therein, and also cost of labor and material furnished to subcontractor and materialmen. (159 Ν.Ε.) On September 7, 1922, Baker, on behalf of the contractor and pursuant to the oral agreement of September 5, executed two written applications for a contractor's bonds for each of said roads, in each of which the contractor in order to indemnify appellant assigned to appellant all of the contractor's right, title, and interest in all the tools, plant, equipment, and materials then or thereafter upon the work, and also "all payments, funds, moneys, or property due or to become due" to the contractor as provided in the contracts for the construction of the roads. On January 16, 1923, the contractor negotiated with appellee for a loan of $20,000 to be used in the construction of the roads. In that connection the contractor entered into a written agreement with appellee by which after reciting that the contractor de sired to obtain a floating credit with appellee and a borrowing account for funds to be used in the execution of said contract, the contractor agreed that the auditor of the county should turn over to appellee all checks issued to the contractor on estimates for work performed on each contract. It was also agreed between the contractor and appellee that the proceeds of all loans should be deposited with appellee subject to the checks of the contractor "for the purpose set out in the said agreement." On May 22, 1923, the contractor, desiring to increase its loan credit for an additional $25,000, entered into a supplemental agreement in substance the same as the agreement of January 16. These two agreements were executed in triplicate, one copy for each of the parties and one copy going to the county auditor. Between January 30, 1923, and December 27, 1923, appellee loaned the contractor various amounts of money, taking its notes there for. A few of these notes were paid, but many of them were renewed from time to time, the balance due appellee on account of these loans being $44,215.28 on principal and $7,024.85 interest and $5,000 for attorney fees. There is also due and owing appellee from the contractor, on account of overdraft, $1,192.78. The contractor carried two checking accounts with appellee, one being in the name of the contractor and the other in the name of J. L. Thompson. All money deposited in said two accounts belonged to the contractor, and all money checked out was for the use of the contractor. Both of these accounts were closed about January 1, 1924. The total amount of deposits in said two accounts was $138,426.87 and was made up of the loans made by appellee and estimates allowed and paid for work done by the contractors on said roads. On June 8, 1923, the total amount then and theretofore deposited with appellee by the contractor aggregated $45,100 and was made up of said loans and a check of $100 drawn on another bank. Between January 30, 1923, and June 8, 1923, the contractor drew checks, which were honored by appellee, for labor, material, equipment, freight, operating expenses, salaries, and miscellaneous items of expense incurred and contracted by the contractor in relation to the operation of its office at Indianapolis, the repair and construction of streets at Columbus, Indianapolis, and Connersville, and in the construction of roads in Sangamon and Christian counties, Ill., all of which construction work the contractor was doing under contracts with the public authorities. Said check so drawn and honored by appellee, together with $1,527.25 principal, interest, and commissions on the loans so made by appellee, aggregated $33,475.50. No part of this $33,475.50 was paid or applied to the payment of anything chargeable to either the Rich or the Krieger road or to the payment of any debt contracted in connection therewith. During said time the contractor drew checks, which appellee honored and paid, aggregating $8,093.64, for labor and material used in the construction of the Rich and Krieger roads, leaving a balance on de posit June 8, 1923, of $3,530.86, $3,430.86 being the net proceeds from the loans made by appellee to the contractor. Between June 8 and July 7, 1923, additional deposits were made with appellee, as follows: Loan of June 12, $5,000, and an estimate on Krieger road of $1,181.65. Between June 8 and July 7, 1923, the contractor drew checks aggregating $8,757.36. for the purpose of paying items not grow ing out of labor, material, or anything con- Prior to the execution of the contracts whereby appellee agreed to make the loans to the contractor and the assignment of the estimates to appellee, the contractor represented to appellee that it intended to use the entire proceeds of the loans for paying for labor and material used in the construction of the Rich and Krieger roads; that while it was constructing other roads in Illinois and streets in Connersville and buying road-building equipment, the same had been financed from other sources; and that it desired to finance the Rich and Krieger roads with the loans from appellee. But almost immediately after the proceeds from the loans and estimates were deposited with appellee, the contractor began to draw its checks for matters not connected with said roads and continued to so draw its checks as long as it had an account with appellee. A large number of said checks, aggregat ing $74,540.98, so drawn by the contractor, were issued to pay for things not connected with the construction and cost of said roads, and when issued bore on their face plainly written and itemized memoranda showing they had been issued for purposes not con- Appellee received, as proceeds of estimates allowed and paid on said roads, $67,419.43, and applied the first two estimates amounting to $3,760.25 on one of said notes, and when it received all of the other estimates, amounting to $63,659.18, it did not apply any part of the proceeds thereof to the payment of any of said notes, but deposited the same to the credit of the contractor and permitted the latter to check against said account in payment of debts other than the debts owing appellee as evidenced by said notes, until the account was overdrawn in the sum of $1,079.65. The estimates aggregating $67,419.43 were more than sufficient to pay all the notes executed by the contractor to ap pellee. Appellant did not know appellee was not applying, said estimates to the payment of said notes. The total amount paid out of the contractor's account was $139,506.52, of which $52,613.91 was paid out before July 7, 1923, and $86,892.61 paid after that date. At that date all money loaned by appellee to the contractor had been placed in said checking accounts, and only $1,181.65 received from estimates had been credited to such checking accounts. Said sum of $52,613.91, so paid out before July 7, was paid out as follows: For labor, materials, etc., on Rich and Krieger roads, $10,381.05; for equipment on said roads and elsewhere in the business of the contractor, $10,957.10; for labor, material, etc., on the two Illinois roads and the Connersville job, $24,163.07; on note to appellee, $1,527.25; for salaries and general expenses of the contractor, $5,585.44. The $86,892.61 paid out after July 7, were paid by the contractor as follows: On Rich and Krieger roads, $52,701.38; on debts for equipments of contractor used on Rich and Krieger roads and in connection with the work in Illinois and elsewhere in its business, $15,816.57; on Illinois jobs for labor, materials, and freight, $98.10; on |