It was not the intention of the framers of the Code, that a demurrer should be allowed to any pleading except the complaint. On the contrary, it was their purpose to confine the remedy of the parties against insufficient pleadings subsequent to the complaint, to a motion to strike out irrelevant or redundant matter. But in the revision of the Code, which was made in 1849, a demurrer was made applicable to other pleadings; whether wisely or not it may not be useful now to inquire. The effect of this change, in practice, certainly is, to produce in many instances, two hearings of the same case, when all the questions might as well, perhaps, have been disposed of at a single trial. Under the amended Code the plaintiff'may demur to any one or more of the defences set up in the answer, stating in his demurrer the grounds thereof, and this demurrer, unless *112otherwise ordered by the court, must be disposed of before any issue of fact in the case can be tried. In the case under consideration, there is an issue of fact to be tried, involving the merits of the controversy. The question presented by this demurrer might well have been disposed of by the court upon the trial of that issue, and thus the delay and expense of two trials, have been avoided.
The demurrer presents for decision the sufficiency of the defence set up by the defendant, founded upon the proceedings before the justice, upon which a warrant was issued for the arrest of the plaintiff. It is provided by, law that whenever complaint shall be made to a magistrate, that a criminal offence has been committed, it shall be his duty to examine the complainant, on oath, and any witnesses who may be produced by him; and if, from such examination, it shall appear that any criminal offence has been committed, he shall issue a warrant, reciting the accusation, and commanding the officer to whom it shall be directed, forthwith to take the person accused of having committed such offence, and to bring him before such magistrate, to be dealt with according to law (2 R. S. 706, §2, 3. To give the magistrate jurisdiction there must be a complaint that an offence has been committed. The party making the complaint must be examined, upon oath, and from such examination it must appear, to the satisfaction of the magistrate, that a criminal offence has been committed. Then, and not until then, he acquires jurisdiction of the matter, so as to authorize the issuing of a warrant for the arrest of the person accused of having committed the offence, in which warrant the accusation must be recited. In this case, there seems to have been an entire absence of all these elements of jurisdiction. The affidavit, upon which the proceedings were based, does not show that a criminal offence had been committed, nor does it appear that any one pretended that such an offence had, in fact, been committed. It does not appear that the justice was satisfied that any such offence had been committed, or that the plaintiff was accused of any criminal offence, either before the justice, or in the warrant issued by the justice. *113Upon this state of facts, I must hold that the arrest was without jurisdiction, and, of course, that the defence to which this demurrer is taken, is insufficient. Judgment must, therefore, be entered for the plaintiff upon the demurrer, with liberty to the defendant to amend upon payment of costs.