delivered the opinion of the court. This court have, on more occasions than one determined, that where there is no testimony, or where the testimony offered is so slight, and inconclusive, that a rational mind could not draw the conclusions sought to be deduced from it, that it is the unquestionable right of the court, and their imperious duty, when applied to for that purpose, to instruct the jury, that the plaintiff is not entitled to recover. Whether the case at bar comes within the operation of this decision, is the question now to be considered, and its determination depends upon the proof offered to the jury, $nd all the circumstances admissible in argument before them, connected with this controversy, as they appear upon the face of the record. The appellant having filed his declaration, also filed in court an account showing the transactions between the parties, and the nature of the claim on which the action was founded. Which account showed the consignment by the appellees of one hundred barrels of herrings to the appellant at ."Philadelphia, the expenses incident thereto, the price at which *110the herrings were sold, the amount thereof received, and the money advanced by the appellant to the appellees. A commission afterwards issued to Philadelphia to take testimony. The appellant filed the necessary interrogatories to obtain proof of the items in his account. The appellees in their cross interrogatories, not even insinuating an objection to, or denial of) the receipt of any of the sums of money wherewith they were charged in the account, put their defence solely on the ground, that they were entitled to a credit for the price of the herrings sold to Joseph Bennett Eves, (who had become insolvent,) either because the contents of the note he had given therefor had been received by the appellant, or that he had rendered himself personally answerable therefor, as an agent violating his duty to his principal, in selling to a vendee, without credit, or in doubtful circumstances; both of which facts were clearly disproved by the testimony taken under the commission.

The appellees, disappointed in the defence to which their cross interrogatories pointed, at the trial of the cause sought to protect themselves from the claim, by the weakness of the appellant’s proof, and to that end prayed the court to instruct the jury, that the evidence produced was not sufficient to support the action. Which instruction the court gave; and from that decision the appellant hath sought relief at the hands of this court, and we conceive it our duty not to withhold it.

Hozey, the clerk of the appellant, deposed that the dealings of the parties, as referred to in the appellant’s statement, (meaning his account,) did take place; and although he also swears that he did not know the appellees, and that he knew the facts he had testified, from his having been a clerk of the appellant at the time the transaction took place, we by no means think that the weight of his testimony is wholly destroyed thereby, or that in candor or charity this court can impute to him a crime (which scarcely deserves a milder name than perjury,) of having sworn positively to facts of which he had no knowledge. His testimony will bear a different interpretation, and in that light we are disposed to view it. When we look, therefore, to the nature and circumstances of the claim, the proceedings in the cause, and the testimony of the witness Hozey, the intervention of a jury, we think peculiarly necessary to settle the rights of the *111parties. We consequently dissent from the opinion delivered hv the county court, and reverse their judgment.

JÜEGMEJCT EE VERSEO, AND PROCEDENDO AWARDED.