Mahlon Pitney

“ We have already pointed out that under the Code, as contained in Mansfield's Digest, the grounds of demurrer are limited, and the contention that defendant will be deprived of a jury trial is not one of them. Indeed, since a demurrer has the necessary effect of admitting the facts alleged in the complaint, a demand for a trial by jury is quite incongruous; for a jury has no function to perform where the facts are admitted. ”

“ November 4, 1907, Dill filed a demurrer to the complaint, upon the following grounds: (a) That it did not state sufficient facts to authorize a court of equity to assume jurisdiction; (b) that it showed upon its face that plaintiff had a plain, adequate, and complete remedy at law; and (c) that defendant was entitled to a trial by jury under the laws and Constitution of the United States, of which he would be deprived should the cause be tried in equity. The demurrer was overruled, and he took an exception. ”

“ Stat., on the ground of a deprivation of the right to trial by jury, plaintiff in error should have 'specially set up' his alleged right in proper time in the state court, and should not have relied upon a premature assertion of that right, contained in a demurrer, where it had no proper place, and not reiterated at any time when there was an issue of fact to be tried. ”