The opinion of the court was delivered by

— It is far from certain, that the horse being permitted to go back into the possession of the debtor, and being by him sold, would in any case excuse the necessity of such a demand; as it is not true that this rendered it impossible for the defendant to procure and surrender him. He might possibly have obtained him on terms much better than be held *613liable to action by the plaintiff. In this case, however, the defendant’s responsibility arose entirely by force of' his contract, not by operation of law, as in case of replevin bond. By the terms of the receipt, he agreed to return the horse “ when legally called for,” &c. The fair construction and legal effect of this is, on demand. This demand was a condition precedent to the plaintiff’s right of recovery, and nothing would excuse it but its having become impossible without the plaintiff’s fault. On the trial, the demand was proved, and the court fully instruct the jury in relation thereto, correctly stating to them what constitutes a legal demand. The defendant’s liability does not, however, become fixed immediately on demand. Action does not accrue against him until there has been a neglect, after reasonable time, to comply. This is always the case, where there is a specific thing to be done on demand, such as the delivery of property or performance of a service. Whether the defendant has been guilty of such neglect, must, from its nature, ever be a question of fact for the jury, under the instructions of the court, to find. If a mechanic give a note, payable in his work, on demand, though what amounts to a demand is a question of law, yet whether the defendant was guilty, after demand, of any actionable neglect, must ever depend on a variety of considerations, such as the nature of the work, the extent of the mechanic’s preparations, means and laborers, &c.; and must, therefore, always be a question to the jury. So, too, they ought to consider, whether further time was given by the consent of parties; for, if so, though this would not waive the demand, yet it would extend the time of performance. In this manner was the question left to the jury, and we see no error therein.

It .is^insisted that the charge was wrong in attaching any effect to the debtor’s being committed to jail. This argument is founded on the ground, that the defendant’s liability was fixed, upon the demand, and therefore, no subsequent event would discharge it. But, as already remarked, the defendant’s liability was not fixed on demand, but only on an unreasonable neglect, after demand. The jury were correctly instructed, if the defendant had been guilty of any such neglect before the commitment, he was liable. If he had not, most clearly, when the debtor had been committed to prison, and the execution necessarily returned to the office .from which it issued, no one was authorized to take the property, the defendant was excused *614from delivering it; for it does not appear that any alias execution was ever taken out, nor does the case show the debtor has pver been discharged from prison.

Judgment affirmed.