majority">Tilghman C. J.

delivered judgment.

After the evidence in this cause had been closed, the defendant’s counsel requested the Court of Common Pleas to give their opinion, that “ under the facts and circumstances of “ the case, an action on the case would not lie.” I take it that by asking the courts’ opinion in this manner, the defendant in* tended to give the plaintiff all the advantage of a demurrer' to the evidence. He could not have meant to take the opinion of the court upon matters of fact; because it was not the office of the court to give such opinion; nor if they had given an erroneous opinion, could there have been any redress by writ of error. What we have to consider then, is whether there was any evidence from which the jury might draw an inference to support the action. Two points arise out of the evidence. 1st, Whether when goods are delivered to an agent to sell and remit the proceeds to his principal, the law raises a promise to account by implication, so that an action on the case will lie for not rendering an account, although no express promise was made. 2d, Whether there was any thing in the evidence, from which the jury might infer that money had come to the hands of the defendant from the sale of the plaintiff’s goods.

Qn the 1st point, the plaintiff’s counsel cited the case of Wilkyns v. Wilkyns, reported by Carthew, Salkeld and Shower. As the reports do not exactly agree in what was said by the judges, I consider this case as no further an authority than on the point adjudged, which was, that an action on the •case would lie against a bailiff on his express promise to account, No authority on either side has been cited directly in point, nor shall I give an opinion on this question. It is unnecessary, because I am satisfied that the judgment should be affirmed on the second point in this cause.

It appears -from the bill of exceptions, that sixty-four barrels of pork, the property of the plaintiff, were by him delj*331Wed to the defendant and one French, (who was included in the original writ as one of the defendants, and as to whom the sheriff returned non est inventus) to be sold on account of the plaintiff. Thirty barrels of this pork were sold to the government at Cape Franfois, the net proceeds whereof were 514 dollars 65 cents payable in coffee, as appears by the account of sales; but it is not said when payable. The account sales is dated 1st January 1806, and in March 1806, the defendant shipped from the Cape to the plaintiff in Philadelphia, two hogsheads and eight barrels of sugar, amounting by the invoice to 300 dollars 63 cents. I will not say whether if I had been on the jury, I should have thought myself warranted in finding that money had come to the hands of the defendant, for the use of the plaintiff. But it is certain that the matter given in evidence was worthy of their consideration, as applied to the count for money had and received. Although the account of sales shewed that the pork was sold for coffee, and not for money, yet the remittance of sugar proved that a payment had been made to the defendant, which had enabled him to procure the sugar. It might have been expected too that he should have shewn at what time the coffee was payable, and why payment had not been made, and what had become of the rest of the pork. There was proof that some of it had been lost, but the rest was unaccounted for. These things, I say, were worthy of the jury’s consideration; and if so, we cannot say what inference they might have drawn. In Longchamp v. Kenny, (Doug. 132) the plaintiff recovered on a count for money had and received, although there was no evidence that the defendant had received any money, but only that a masquerade ticket, the property of the plaintiff, had come to his hands, which he had not returned, nor given any account of. We have considered the principle of this case as law in Pennsylvania, and therefore there is no necessity of positive proof that money came to the hands of the defendant. Upon the whole, the record shews, that there was evidence applicable to one count of the declaration. Of this evidence the jury were judges. If they found against the weight of evidence, the defendant’s remedy was by motion for a new trial. I see no error on the record, and am therefore of opinion that the judgment be affirmed.

Judgment affirmed-■■

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