Pearce

Action of claim and delivery. The plaintiff purchased two mares from L. G. Simmons, at Lakeport, on the 1st of April, 1891, and took from him a bill of sale and an order upon one Reynolds for their delivery. The mares were at that time at pasture on a ranch belonging to Reynolds, about thirty miles from Lakeport, where they had been placed about a month previously by one Christie. Christie had been working the mares during the winter for their feed under an agreement with Simmons, and at the close of the working season placed them on this ranch with the consent of Simmons, and told the keeper of the ranch not to let any one have them except upon his order. The plaintiff made no attempt to take possession of the mares until the 12th of April, when he went to the ranch and presented Simmons’ order for them, but Reynolds refused to give them up by reason of the order that Christie had given when the mares were left there. On the 13th of April Christie sent for the mares and had them removed to his own place, about five miles from Lakeport, where on the same day they were taken by the defendant, as sheriff of Lake County, under a writ of attachment issued in a suit by Christie against…

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.