Pearce v. Boggs ( 1893 )

Paterson, J., concurring.

I concur. The plaintiff did not attempt to take possession immediately after he purchased the property, nor did he offer any excuse for his failure to do so. The only fact shown excusing an immediate delivery is tiie fact that the mares were thirty miles distant from the place of sale; but this did not excuse a delay of eleven days. Plaintiff claims that an earlier demand “ would have been as futile as it, was on the 12th of April,” because Christie had directed that no one should be given possession except upon an order from himself; but this is mere surmise. It was his duty to use diligence. If he had made demand promptly and had been refused possession, he could have procured au order from Cliristie. The latter testified that if plaintiff had presented to him au order prior to April 13th, he would have delivered possession of the mares; but whether a demand upon Christie would have been effective or not, if plaintiff had acted promptly either by demand or suit for possession, he might have been excused for his failure to comply with the letter of the statute requiring an immediate delivery and au actual and continued change of possession.