
    J. T. Garrett, administrator, v. S. B. Long.
    1—An instruction to the jury which properly presented the law of the case was asked of the court below, and was refused. The charge of the court to the jury does not appear in the transcript, nor is any reason given for the refusal of the instruction asked. Held, that the judgment will be reversed, notwithstanding any presumption that the instruction was refused because it was contained substantially in the charge of the court itself.
    
      Appeal from Robertson. Tried below before the Hon. 27. H. Davis.
    The opinion is referred to for the most material facts. ' The appellee was plaintiff below, and recovered judgment for some $450. A new trial being refused, the defendant appealed..
    
      Stewart & Barziza, for the appellant.
    No brief for the appellee.
   Morrill, C. J.

This suit was for payment for personal services, and the defense was payment. The only point in the case for revision is the charge of the judge, requested and refused.

The requested charge simply yvas, that if the party defendant had complied with his contract he was not liable thereon.

We must presume the charge was refused because it had been given generally, but as the charge given is not contained in the record, it is merely a presumption.

Certainly the charge ought to have been given, and as it was refused, and no reason appears for the refusal the “judgment is reversed.

Reversed.  