
    Boggs v. Clifton.
    After the Court has commenced to instruct a jury orally, it is too late for a party to require the instructions to be given in writing.
    Where the evidence is not in the record, the Supreme Court will presume in favor of the instructions of the Court below, if in a supposable state of facts, they would be correct.
    APPEAL from the Warren Circuit Court.
   Davison, J.

Gif Lon was the plaintiff below, and Boggs the defendant. The complaint contains two counts. The first charges, substantially, that the defendant had built a mill-dam across K'cPapoo creek, and constructed a mill-race, which caused the plaintiff’s lands, (describing them,) to be overflowed, whereby he was damaged, &c. And the second alleges, in effect, that the defendant neglected to erect head gates, and failed to keep the embankments along the millrace, and along the banks of the creek, in the immediate vicinity of his mill-dam, in sufficient repair; and that by reason of such neglect, the land was overflowed and damaged, &c.

Defendant answered: 1. By a general denial. 2. That one Pl.'oci? Farmer had been the owner of all the lands now owned by the plaintiff and defendant; and that while he wTas such owner, and more .than twenty years before the commencement of this suit, he built the dam and constructed the race of which the plaintiff complains; that about three years since, the defendant bought the mill-dam and race of said Farmer, and now holds under him, and that they were then on the same land that they now are. It is expressly averred, that the dam and race were built and constructed more than twenty years next before the bringing of this suit; and during all that space of time, have been and have continued in the same condition, as when so built and constructed, &c.

Reply, in denial of the second paragraph of the answer. Yerdict for the plaintiff. Motion for a new trial denied, and judgment, &c.

In the record, there is a bill of exceptions which says, that after the Court had commenced its charge, and before the jury had retired to consult of their verdict, the defendant requested the Court to give no other instruction, unless in writing; but the Court, over that request, instructed the jury verbally, as follows: “It has been contended, that unless the plaintiff has proved that the defendant built the dam, and dug the race, as alleged in the complaint, the jury must find for the defendant. But that is not the opinion of the Court. The true issue is, whether the defendant has kept up the race in as good repair as it has been kept in for the last twenty years.”

This instruction is said to be erroneous, on two grounds: 1. It was verbally given, though the Court was requested to reduce it to writing. 2. It misdirected the jury, as to the issues made by the pleadings. The Code says: “When the argument of the cause is concluded, the Court shall give general instructions to the jury, which shall be in writing, and be numbered, and signed by the judge, if required by either party.” 2 R. S., § 320, p. 110. We have recently decided that this section “should be so construed, as to require the party who desires a written charge, to notify the Court a reasonable time before it may be called to instruct the jury, of his desire that such charge be in writing.” New on v. Newton, 12 Ind. 527. In this case, the request to reduce to writing was not made until alter, the Court had commenced its “general instructions to the jury.” And the result is, the instruction was not objectionable on the ground that it was verbally given.

R. A. Chandler, for the appellant.

Gregory and Ilaiyoer, for the appellee.

The second ground of objection is also untenable. Whether “the defendant had kept the mill-race in repair,” &c., was one of the issues made by the pleadings; and the evidence not being in the record, we are allowed to presume that it was applicable, alone, to that issue, which thereby became “the true issue” before the jury. The instruction, as we construe it, does not assume that that was the only issue in the cause; but one involving an inquiry upon which the evidence was conflicting. For aught that appears, the other issues may have been conceded in favor of the plaintiff. Wood v. Commons, 3 Ind. 418.

Par Curiam. — The judgment is affirmed, with 5 per cent, damages and costs.  