
    Reuel W. Sanford versus Joanna Haskell & al.
    
    An action (authorized hy c. 22, § 4 of R. S.) to recover double the price of building the defendants' part of a divisional fence, is prematurely brought, if commenced before the expiration of “one month after demand.”
    In such a case indebitatus assumpsit mil hot he; it should he an action of the case, setting forth all the facts necessary to be established, to fix the defendants’ liability.
    Reported from Nisi Prius, Appleton, J., presiding.
    This, was was an action of assumpsit to, recover double the price of building the. part of a divisional fence which was assigned to the defendants by fence viewers.
    The case was argued by Vbse, who was of counsel for plaintiff, and by
    
      Lancaster, for the defendants.
   The opinion of the Court was drawn up by

Davis, J.

The fence, built by plaintiff, was "adjudged sufficient” by the fence viewers, Nov. 10, 1858. The writ is dated Nov. 20, 1858. As " one month” had not expired "after demand,” the suit was prematurely brought. R. S., c. 22, § 4..

Nor will indebitatus assumpsit lie in such a case. There was no promise, express or implied. It should have been an action of the case, setting forth all the facts necessary to establish a legal obligation to build the fence, a neglect to do it, the construction of it by the plaintiff, the adjudication of its sufficiency, and the neglect of the defendants to pay therefor within one month after demand.

Plaintiff nonsuit.

Appleton, C. J., Cutting, Walton and Danpoetii, JJ., concurred.  