Majority
p. 498GEORGE HEARN vs. EBENEZER HEARN.
Headnote
Iti debt on a bond (payable on demand, plff. need not prove a demand before action brought.Debt on bond payable on demand.
Cullen gave judgment for the plff. subject to the opinion of the court on the question whether the action could be sustained without proof of a special demand before action brought. And he referred to Mr. Justice Littledale’s opinion in Simpson vs. Routh, 9 Com. Law Rep. 331; f 3 Barn, and Cressw. 683;) where he says that in case of a bond with a penalty to pay a certain sum on demand, an express demand must be made before the action can be maintained.
said the judge must have meant a bond with a collateral condition. His reasoning is otherwise against his own opinion; and that opinion clearly wrong if applied to a bond for the payment of money on demand. The distinction is between a collateral contract for a thing in fieri, and a precedent debt or duty. Where a
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debt or duty is ascertained, no demand is necessary other than the bringing action which is a demand; but where the bond or contract is for a collateral thing a demand must be proved. Cro. Eliz. 548, 721; 1 Strange Rep. 88;2 Levinz 198; Cro. Jac. 242; 1 Saund. Rep. 32. n.
Layton, for plff.
E. D. Cullen, for deft.
Judgment for plaintiff.