
    Pope and Scott v. Hays.
    1. It is necessary to alledge anti prove a special demand, before a recovery of ten per cent, damages can be had against an officer, for money collected by him and not paid over.
    2.- Where a special demand'is necessary to the right of action, this must be proved, and1 the commencement of an action is no such demand.
   Pettibone, J.,

delivered the opinion of the Court.

This was a1 motion against the Sheriff, for not paying over moneys collected on' execution. It claimed the money, together with legal damages for the same, the said Sheriff having failed and refused to pay the same, according to his duty and the law. The notice of this motion was given August 24th, 1823; The' execution on which the money was collected, together with the Sheriff’s receipt endorsed thereon, for the amount of the money claimed, were given in evidencfe;- This receipt was' dated 7th February, 1818. The Court find that an execütion-was'issued 10th January, 1818, and that it was delivered to the Sheriff, and' the Sheriff had received the sum- of $74 07 1-2 cents; and that he had neglectfed and refused to' pay the same to said plaintiffs. It was therefore considered by the Court, that the plaintiffs should recover the said $74 07 1-2, and $22 and 81 cents,- legal interest thereon, from the term of January, 1818, when the said execution was returnable, until that time. The error alledged in this case-isj-thattlie Court did not give judgment for the ten per cent, damages which the’plaintiffs claim-they are entitled to, under statutes of this State. The plaintiffs, in order to entitle themselves to damages, are hound to show that they have demanded the money. The penalty only attaches after a de--mand and refusal to pay. It does not appear, from the record in this case, that any demand has ever been made; The Court, it is true, find that the Sheriff neglected’ and refused to pay, &c; If a-'refusal to pay should be-considered as implying a de--mand, still it is not found by- the Court when that refusal was. It might have beer.’ before the passage of the act, under which this penalty is claimed, which was in' Decembfer, 1818, long after the receipt of the money by the Sheriff. Or it might have been after the commencement of the suit, even on the-day of the judgment, and' still the finding of the Court would be true, but would not entitle to the penalty. Ii it is said that the commencement of the action is a demand, we answer that when a special demand is necessary to give a right of action, then the commencement of a suit1 is not a sufficient'demand;-and as we conceive that a special demand is necessa»-ry,-in order to entitle the plaintiffs to the penalty, and as no such demand appears t<?' have been made;

The judgment of the Court below, for the money collected, and legal interest), without the temper cent damages, was correct, and-must be affirmed with, costs on’ this writ of error.  