Ellsworth

The plaintiff served on defendant the affidavit, notice and demand in all respects as prescribed in the one hundred and ninth section of the Practice Act, and was therefore in a position to maintain this action. It is insisted that the plaintiff cannot recover because the complaint docs not allege the demand, and the plaintiff was not entitled to prove it under the pleadings. But the evidence was introduced without objection, and fully supports the finding on the question of demand. If the allegations of the complaint were not sufficient to authorize the introduction of the evidence on this point, defendant should have objected to its admission on the trial. It is too late to raise the question for the first time in this court. The complaint alleges the wrongful taking and is sufficient on its face. The defendant in his answer justifies by alleging title in Mitchell, and that he took the property as sheriff in an action pending between Mitchell and Morris and Dibble, and the replication avers the serving of the affidavit and demand under the one hundred and ninth section, thus presenting the issue. The testimony was introduced without objection, and the court found for the…