#### BARNETT BURNETT v. W. H. FULTON.

Where the C ourt, on the trial of a cause, submits a question for the finding of the jury, upon which there is no evidence, it is error.

This was an action of Trover, tried before Ms Honor Judge Dick, at the Spring Term, 1854, of Henderson Superior Court.

The plaintiff proved that he bought a wagon from one Cook, at the price of seventy-five dollars, and paid for the same. The wagon, at the time of the purchase, was in the possession of the defendant, and Cook gave plaintiff an order to the defendant, directing the delivery of the wagon to him, the plaintiff presented Cook’s order, and demanded the wagon of the defendant, who refused to deliver it up, alleging that the wagon had been conveyed by Cook to one Davenport, to secure a debt due him, the defendant.

Plaintiff proved by one Peebles, that when he, witness, was about to purchase the wagon from Cook, a short time before the sale to plaintiff, he called upon the defendant, to know if he would give up the wagon, provided ho bought it from Cook, to which the defendant replied that he would give it up, provided the Jones debt was paid. It was in evidence, further, that there was a compromise of the Jones debt, by which the wagon was to go back to Cook, and did go back to him. After-wards, the wagon was again in the possession of the defendant, and was so at the time of the bringing of this suit, but how defendant got the posession is not stated in the case *sent'*up. One witness said he professed to hold it for rent due him from Cook.

A deed in trust from Cook to one Davenport, for the wagon in question, dated before the sale to plaintiff, was also put in evidence.

The defendant’s counsel requested the Court to charge the jury, that, if the defendant was in the adverse possession ofths *544property, at the time the plaintiff bought the property in question from Cook, he was not entitled to recover.

The Court refused so to instruct the jury, but told them, “ that if they believed that the defendant ever got the possession of the wagon, by the consent of Cook, as a loan, to be returned to Cook when requested, or at the end of a term agreed on by them, which had expired, it would be a bailment of the wagon, and the defendant could not properly set up an adverse title, either against Cook, or the plaintiff, who claimed under Cook.”

Defendant excepted to this part of his Honor’s charge.

Verdict for the plaintiff. Rule for a new trial; rule discharged. Judgment and appeal.

*J. Baxter,*for plaintiff.

*Bynum*and *J. W. Woodfin,*for defendant.

Battle, J.

We are of opinion that the plaintiff is entitled to a *venire de novo,*because his Honor submitted to the jury a question of fact, without any testimony to raise it. Upon closing the evidence on the trial, the defendant’s counsel requested the Court to charge the jury, that the plaintiff could not recover, because, at the time when he purchased the wagon in question from Cook, the defendant was in the adverse possession of it- This instruction his Honor declined to give,but charged that, if the jury should believe that the defendant ever got possession of the wagon, by the consent of Cook, as a loan, to bo returned to Cook when requested, or at the end of a certain time, agreed on between them, which had expired, it would be a bailment, which he could not set up as an adverse title, either against Cook, or the plaintiff, who claimed under him. Now, there is no testimony set forth in the bill of exceptions, to show bow the defendant got possession of the wagon the second time; but it appears from the statement of one of the plaintiff’s own witnesses, that, on a certain occasion, the defendant said he would not give up the wagon, because Cook owed him for rent. *545When this occurred, does not distinctly appear, though, from the manner in which it is set out in the bill of exceptions, it may be inferred that it was whilst the wagon was the second time in the defendant’s possession; but, however this may be, it is not disputed, that, when the plaintiff pwchased the wagon from Cook, it was in the defendant’s possession; that possession was *prima facie*evidence of title, and it was incumbent upon the plaintiff, to show that it belonged to Cook, and that the defendant had no right to retain it from him. Upon this point in the case, the plaintiff offered no testimony to show that the defendant held as mere bailee, who was bound to surrender the article to Cook or his vendee, and his Honor erred in submitting the question to the jury without testimony, and for this error the judgment must be reversed, and a new trial granted.

Judgment reversed.