delivered the opinion of the Court—Burnett, J., concurring.
The plaintiff employed the defendant, as an agent, to buy gold-dust, allowing him a certain per cent, on each one thousand dollars purchased.
The declaration alleges a deposit • of nine hundred and forty dollars for this purpose, and a refusal by the defendant, on demand, to account for, or pay over said money, or its equivalent in gold-dust.
The answer specifically denies a demand.
The defendant moved for a nonsuit, on the ground that no demand had been proved. The Court below overruled the motion-, at the same time instructing the jury that a demand need not be shown. This was error. “ In an action against an agent, for not accounting, etc., a request to account and pay over the balance must be stated.” 1 Chitty’s Pleading, § 331, and the cases there cited.
If necessary to be stated, it must be proven, as the allegata and probata must correspond.
Judgment reversed, and cause remanded.