Brown & Hotchkiss v. Cook

9 Johns. 361

Opinion

Per Curiam.

The plaintiff below was bound to have shown a demand of the horses before suit brought. The defendants were naked bailees, and bound, upon demand, to produce the property, at the place specified in the receipt; but until a demand, there was no default, There was no precedent debt or duty. The demand was parcel of the contract, and recjuisite to create the duty. There was, likewise, another fatal objection to the right of recovery. The constable having levied the goods upon the execution, within the twenty days, and delivered them over to the defendants, ought to have demanded the horses, and to have levied the amount of the execution, by the sale of them, within the thirty days. He neglected to do this, and suffered the execution to run out, and thereby lost all just claim and title to the possession, of the horses.

Judgment reversed.