
    Eli Mead v. Frederick Kirkpatrick.
    If it appears by the complaint filed in an action of unlawful detainer that 'the summons was issued previous to demand and notice in writing given for •the delivery of the possession, the judgment will be reversed.
    The complaint in this case was made to the justice on the •21st December, 1825, and the summons to the defendant -issued on the same day, returnable on the ,6th of January, 1826. The complaint concludes thus, “but the said Eli doth wilfully detain and without force hold over and unlawfully ■detain the said premises from the said Frederick, although demand of the possession of the said premises and notice in writing for the delivery thereof to the said Frederick was made and given by the said Frederick to the said Eli, to wit: on the 2d day of January, 1826, and so the said Frederick saith that the said Eli is guilty of an unlawful detainer of the said premises.” On this complaint a verdict was found, and judgment rendered for the complainant.
    
      W. Hoisted moved to reverse the judgment. The defendant could not have been guilty of an unlawful detainer unless he held over “ after demand and notice in writing for the delivery of the possession,” Rev. Laws 349, see. 5; and the demand and notice in writing were not in this case made as appears by the complaint, from which the complainant could not lawfully vary on the trial, until the 2d of January, 1826, after the commencement of the suit.
   By the Court.

The objection is fatal,

Let the judgment be reversed.  