This case falls precisely within that of Taber v. Hutson, 5 Ind. R. 322, and must be reversed.

It is said that as the evidence is not upon the record, we can not say but that the judgment is right upon it, notwithstanding the verdict was found under the influence of an erroneous instruction. But the rule is, that where the Court gives an erroneous instruction, applicable to the issues, it will be presumed to have had an influence, unless the contrary be shown; but where the Court refuses an instruction, the contrary not being shown, it will be presumed to have been refused because not applicable to evidence given in the cause.

The judgment is reversed with costs. Cause remanded, &c.