Nov. Term, phraseology was the same in that case, and was held 1856. good in an indictment under the old practice.

BOSWELL
V.

It is probable that the description of the offense is too THE STATE. Vague, as in The State v. Aydelott, 7 Blackf. 157. But as the defendant pleaded over, and did not except to the opinion of the Court, overruling the motion to quash, the record does not present anything in that behalf to be considered. Hornberger v. The State, 5 Ind. R. 300.— Leyner v. The State, at the present term (1).

2. The second error is, that every order made by the Court against the defendant was erroneous.

This is too vague to meet the requirement of the statute. The errors must be specially assigned. 2 R. S. p. 161; 7 Ind. R. 580; Id. 589; and several cases at the present term (2).

3. That the Court erred in overruling the motion for a new trial.

The evidence is not in the record. We must presume the ruling of the Court in that behalf correct. Mansur v. The Indianapolis, &c., Plankroad Company, at the present term (3).

The judgment is affirmed with costs.

G. A. Wood and D. P. Vinton, for the appellants (4).
J. L. Miller, for the State (5).

(1) Ante, 490.

(2) Riley v. Murray, ante, 354.

(3) Ante, 487.

(4) Counsel for the appellants cited The State v. Aydelott, 7 Blackf. 157; The State v. Miles, 4 Ind. R. 577.

(5) Counsel for the State cited The State v. Merrill, 3 Blackf. 346; The State v. Kuns, 5 id. 314; The State v. Slocum, 8 id. 315; Read v. The State. 1 Ind. R. 511.

Nov. Term,

PAUL v. BAUGHER and Others.

1856.

MARTIN

V.

HOWELL.

Friday,
January 23,

APPEAL from the Decatur Court of Common Pleas. Per Curiam.-Suits upon notes by the assignee against the maker. Answer, in each case, setting up a set-off. 1857. Reply, that before the plaintiffs purchased the notes, they called on the maker, defendant, and informed him that they were about purchasing the notes, and asked him if he had any set-off or other defense to them, and that he replied that he had none whatever, and would set up none, if they purchased the notes. Demurrer tó this reply overruled. Judgment for plaintiff on the trial of the cause.

The Court did not err in overruling the demurrer. It showed a good estoppel to the defendant's setting up any set-off. Sloan v. The Richmond, &c., Company, 6 Blackf. 175. No other question is presented by the

record.

The judgment is affirmed with 1 per cent. damages and costs (1).

W. Henderson, for the appellant.

J. S. Scobey and W. Cumback, for the appellees.

(1) Two other cases between the same parties and precisely like this, were this day affirmed.

MARTIN and Another v. HOWELL and Another.

APPEAL from the Decatur Court of Common Pleas. Friday, January 23, Per Curiam.-In this case the process was served on 1857. the 21st of September, and the first day of the term of the Court following was the first day of October ensuing. The service was in time. This is the only question.

Nov. Term, 1856.

WOOLLEY

V.

THE STATE.

The judgment is affirmed with 2 per cent. damages and costs (1).

J. Gavin and J. R. Coverdill, for the appellants.

J. S. Scobey and W. Cumback, for the appellees.

(1) The judgment in the case of Martin v. Eggers and another, on appeal from the same Court, and involving the same point, was this day affirmed with 2 per cent. damages and costs. Counsel the same as

above.

Friday, January 23, 1857.

WOOLLEY V. THE STATE.

If the evidence be not in the record, instructions given will be regarded as pertinent to the case made, unless clearly erroneous under any supposable state of facts; and instructions refused will, in that state of the record, be presumed to have been irrelevant.

APPEAL from the Union Court of Common Pleas. STUART, J.-Information for common nuisance. Woolley was a licensed retailer of liquor under the act of March, 1853. The suit was commenced in August, 1854, and is therefore saved by the express provisions of the act of 1855. Laws of 1855, p. 222.-Coleman v. Dobbins, at the present term (1).-6 Ind. R. 444.

The information is based on the ninth section of that act, declaring, as at common law, that places for the retail of spirituous liquors, if kept in a disorderly manner are to be deemed common nuisances. Acts of 1853, p. 88. Woolley is charged with keeping a disorderly establishment, and maintaining it to the annoyance, disturbance and injury of the neighborhood. Trial by jury, and verdict of guilty. The defendant's motion in arrest of judgment was overruled; and judgment was rendered on the verdict. The evidence is not in the record.

1856. WOOLLEY

V.

The only thing presented by bill of exceptions is Nov. Term, the instructions given and refused. We see nothing objectionable in the instructions given. They cover much of the ground embraced in those refused. In the THE STATE. absence of the evidence, we must presume, in favor of the Court below, that the instructions given were pertinent to the case made; and that those refused were irrelevant.

This Court has so often and so largely treated of the subject of instructions, given and refused, that it does not seem necessary to say more in relation to it. To go no further back than 1839, it was held that, in the absence of the evidence, the refusal of instructions will be presumed correct. 5 Blackf. 112.-Id. 210.-Id. 498. This rule has been adhered to ever since. 8 Blackf. 95.—2 Ind. R. 230. And see generally under the title "Instructions," 3 Ind. R. 612.-4 id. 679.-5 id. 597, 598.-6 id. 572 (2).

If an instruction given is clearly erroneous under any supposable state of facts, the Court will reverse the judgment, presuming that the jury were misled by it, and that too whether the evidence be in the record or not. Murray v. Fry, 6 Ind. R. 371.

But as a general rule, in the absence of the evidence the presumption is in favor of the instructions. It is due to the lower courts that, in such a state of the record, we should presume their exposition of the law to be pertinent and applicable to the case made. Otherwise this Court would be constantly dealing in abstractions. Hence, at an early day, the Court adopted the ruling indicated, and adhered to it ever since. 1 Blackf. 244.—Id. 348, and the heading "Instructions," supra.

Per Curiam.-The judgment is affirmed with costs.
C. H. Test and N. Trusler, for the appellant.

J. W. Gordon, for the State.

(1) Ante, 156.

(2) See, also, under the same title, 7 Ind. R. 747, 748, and the index of this volume.

THE BOARD OF COMMISSIONERS OF FAYETTE COUNTY .
CHITWOOD and Another.

Section 36 of the act of 1852 providing for the organization of county boards, &c., provides that an appeal from the decision of a board of commissioners shall be tried as an original cause, but not that it shall be tried in the same manner as by the commissioners; hence it may be tried by jury.

On appeal from a decision of a county board, a certificate of a township
clerk, that the claim (for medical services rendered to a pauper) had
been presented to the township board of trustees, acting as overseers
of the poor, and by them approved, was admitted in evidence in the
Circuit Court. It did not purport to be a copy of any record or order
of the board of trustees.

Held, that the certificate was admissible to show that the services had
been rendered at the instance of at least one member of the board,
and not voluntarily; but it was not evidence for any other purpose,
and as it misled the jury, a new trial should have been granted.
Held, also, that the civil township is a corporation represented by a
board of trustees, who are bound to keep a true record of all their
proceedings.

Held, also, that a township board can only speak by its record.
A board of county commissioners cannot meet at any time other than
the regular terms; and it can only transact business as a board.
An order made by commissioners at any other time, unsupported by
evidence of confirmation by the board when legally in session, is not
valid, nor is it evidence of any action of the board.

The county board may employ a physician for the prisoners and poor of
one or more townships of a county.

It is not shown that a certificate was obtained by fraud, if it appear that the maker knew its contents.

Monday,
January 26,
1857.

APPEAL from the Fayette Circuit Court.

GOOKINS, J.-Chitwood and Porter presented a claim to the board of commissioners of Fayette county for medical services rendered by them to a pauper. The board refused to allow the claim. From that decision, they appealed to the Circuit Court, where there was a trial by jury, verdict for the plaintiffs, new trial refused, and judgment. The record contains the evidence.

It is assigned for error that the cause was submitted to a jury, when it should have been tried by the Court. There was no error in this. Section 36, p. 230, 1 R. S.