#### A. H. BOND, Administrator, v. J. H. HALL.

Tó leave a question to the jury, without some evidence bearing upon the matter, and upon which they might base their verdict, is error.

The presentment and collection of an order by one to whom it was not endorsed, prima fade, makes the collector a debtor to the payee.

This was an action of assumpsit, tried before Howard, J., at the last Pall Term, of Chowan Superior Co lift.

There were several exceptions to the ruling of Ms Honor *15in this case, but as only one, to wit, the 4th. stated in the bill, i» considered by this Court, the others are omitted. That exception is as follows: “That there was no evidence to rebut the presumption that the order collected by plaintiffs intestate, was still unaccounted for.” The plaintiff had made out a 'prima facie case by the evidence, for a considerable sum of money, all of which, except $59, was met by evidence, that the parties had had a settlement, and the plaintiff’s intestate had taken a note lor the amount referred to by the proof. As to the overplus, it was attempted to be met by the evidence of •one Skinner. He testified that in the fall of 1859, the plaintiff’s intestate, Clayton, presented to him, for acceptance, an order drawn on him by one Rogerson, in favor of the defendant, Hall, for $80, that he accepted the order, and about the 1st of January, 1860, he called at the store of said Clayton, when the same order was produced, and he paid it to him, (Clayton); that this order had never been endorsed by the defendant. Ilis Honor, in respect to this order, charged that it not having’ been endorsed, and having been presented and collected by the plaintiff’s intestate, the law presumed that he was acting as agent of the defendant, the payee, and, therefore, they must allow it, and find for the defendant, unless the evidence in the case satisfied them that the plaintiff’s intestate had already accounted for it. This was excepted to, as above stated.

Yerdict for the plaintiff, and on judgment being rendered, the defendant appealed.

II. A. Gilliam, for the plaintiff.

Ilines and Johnson, for the defendant.

Manly, J.

In considering this case, we have confined our attention to a single exception, the fourth in order, which objects to the instruction of the Court below, in respect to the money paid on the order for $80. The order was drawn by one Rogerson, in favor of Hall, upon T. S. Skinner, and the latter testified that it was presented nnindorsed to him, by the *16intestate, A. W. Clayton, and that he paid it to the said Clayton. This raised prima facie, an indebtment to that amount from Clayton to Hall. ¥e have examined the statement of proofs in this ease, and do not find any evidence of a payment —of a credit in account, or other settlement of the same. When his Honor, therefore, submitted it to the jury to say whether it had, or had not been accounted for, it was error. To leave a question of fact to the jury, without some evidence bearing upon the matter, and upon which they might base their verdict, is to invite them to wander into the field of conjecture, and to act upon the uncertain suggestions there met with.

The case was admitted to turn, in one aspect of it, upon the point whether the money received by Oiayton, upon the draft, payable to Hall, was ever accounted for by Clayton with Hall, and this being left to the jury, without evidence, vitiates the finding. Cobb v. Fogleman, 1 Ired. 444; Sutton v. Madre, 2 Jones, 320.

There must be a venire de novo.

Per Curiam,

Judgment reversed.