majority">Blackford, J.

Indebitatus assumpsit against the ' defendant in error for money had and recéived, and for goods sold and delivered. Elea, the general issue.

On the trial, the following instructions were given: Í. If the jury bélieve, from the ■ evidence,' that the defendant received the money for ■ the plaintiffs a's 'their agent, they Gannot recover it on the common count for money had and received; ,'but tfcey should have -declared ■ specially, alleging a -demand. on the defendant for a settlement, and his refusal. 2. The plaintiffs cannot be permitted to prove a demand in this case, as none is alleged in the declaration. Upon these instructions being given, the plaintiffs .suffered a nonsuit; and a judgment was rendered against them for costs. . .

Thé giving of these .instructions is the error'assigned.

We do not know what the evidence before the jury was ; but the instructions were relevant to the issue, and we must presume that they were applicable" to the facts proved. Peyton v. Bowell, 1 Blackf. 244. , The law on the subject concerning which the instructions were given is .this: '“.The common count for money had and received lies by a principal against his agent to recover the amount of moneys, collected" and received by the latter for his .use, or the pro,-', ceeds of goods sold by the agent for'his principal, and which' proceeds the agent has, received. In these casés, the. agent is entitled to a deduction for his .commission and expenses, and an account, &c. should be demanded before an action is brought.” Chitt. on Cont. 485. This being the law applicable to the case, which, as we must. presume from the instructions,"was before thé jury; it is evident . that'the instructions are erroneous. ' ' • '

As -the Court instructed the jury so expressly, against the plaintiffs’ right to recover, they were at liberty, upon the instructions being given, to suffer a nonsuit and then sue out' a writ of error. Pollard v. Buttery, 3 Blackf. 239.

J. Pettit, for the plaintiffs.H. S. Lane and S. G. Willson,.for the defendant.Per Curiam.

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

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