French

— This action was brought to recover the value of two horses and a wagon and harness. They were taken by defendant, as constable, under an execution against plaintiff and his wife, and sold. Plaintiff claimed the property as exempt from execution under subdivision 6 of section 690, Code of Civil Procedure, the claim being that, as a peddler, he habitually used it to earn a living. There was also in the complaint an item for the value of a certain bread-box, which wTas afterw'ard withdrawn- Plaintiff recovered judgment, and defendant appeals from the judgment, and from an order denying a new trial.

The judgment will have to be reversed for the refusal of the court to give certain instructions asked by appellant. Counsel for respondent contends that the record does not show that other instructions were not given by the court, either on its own motion or at the request of one of the parties; and that, in the absence of such showing, it must be presumed that other instructions, covering the matters contained in appellant’s rejected requests, were given. But, unfortunately for this contention, the record does show affirmatively that there were no such other instructions. It is true…