By the Court
There was a demurrer in this case to the answer, but the Defendant, below-insists that the complaint is radically defective, in that it appears thereby that the Court had no jurisdiction of the subject of the action, (the value of the property being stated at ninety-nine dollars only, and no damages alleged), and because it does not state facts sufficient to constitute a cause of action. Both parties have confined their arguments to these alleged defects of the complaint.
Tbe old rule that a demurrer reaches the first defective pleading, is subject, under our system of practice, to this important qualification, that only an objection to the jurisdiction, and the objection that the complaint does not state facts sufficient to constitute a cause of action, are saved to the Defendant upon a demurrer to the answer ; because the statute declares every other defect waived by answering over. These, however, are the very objections relied upon by the Defendant below, the Plaintiff in Error here, and he specifies a number of grounds of objection under each of these heads. But it is only necessary to consider one of these in order to dispose of this case.
It is a well settled rule that, where a person comes lawfully into the possession of personal property, an action cannot be maintained against him to recover possession thereof, until the property shall have been demanded of him, and he shall have refused to give it up. In this case, as no unlawful taking is averred, the possession of the Defendant below must be presumed to have been lawful; and as no demand and refusal is alleged, the inevitable conclusion is that no demand was made. The action, therefore, was premature, for until after demand and refusal, no right of action exists.