copy to the defendant, in the manner prescribed by sec. 158 of the Code.

The rules with reference to the pleading of judgments, private statutes, or the performance of a condition-precedent, as contained in secs. 161, 162, and 163, of the Code, and before noticed, will, of course, be borne in mind in the framing of complaints, where allegations of those natures are necessary.

An administrator may sue on a promissory note made to him as such, either in his private or his representative capacity. And, in an action under the Code, it is not necessary for him to make profert of his letters of administration.-Bright v. Currie, 10 L. O. 104. The same principle would, doubtless, hold good in the case of executors, as regards their letters testamentary.

Of course the above remarks, though embracing many, do not profess to include, still less to give forms for every species of complaint, which will be necessary in practice. The same general principles, however, apply to all, and all must now be framed upon the same model, mutatis mutandis.

The foregoing observations have more peculiar reference to actions where the relief demanded would, under the old system, have been more peculiarly of common law cognizance. The class of equitable actions, if they may so be termed, remains to be shortly noticed.

The considerations with respect to the general form of averment in these cases, have already been most fully entered upon, and the cases fully cited, in chapter I. of the last division of this work. The safest guide which can be taken with reference to the averments in these cases, will, perhaps, be a welldrawn bill in chancery under the old practice carefully retrenching, in the process of adapting that form to the present requisites, every verbal surplusage, and every merely probative allegation. Thus framed, the complaint will conform to the law as laid down by a large majority of the cases above referred to, and particularly in Howard v. Tiffany, 3 Sandf. S. C. R. 695; 1 C. R. (N. S.) 99; Coit v. Coit, 6 How. 53; Minor v. Terry, 6 How. 208; and Getty v. The Hudson River Rail Road Company, 6 How. 269; 10 L. O. 85.

With reference to injunction, a distinction may probably be drawn between those cases where that remedy is the main. object of the suit, and others where it is merely sought collaterally. Where the latter is the case, it may well be contended,

that the insertion of matter bearing solely upon that injunction, as a collateral remedy, and not going to the establishment of the main cause of action, is pro tanto irrelevant, and ought not to appear on the pleadings at all, but to be substantiated by separate affidavit, according to the principles laid down in Putnam v. Putnam, 2 C. R. 64 Milliken v. Carey, 5 How. 272; 3 C. R, 250; and other cases to the same effect, before cited. Where, however, the granting of an injunction forms either the sole object of the suit, or a substantial part of the relief expressly sought in it, it would seem that this cannot be so; and, in cases of this description, averments of the facts, showing the plaintiff's right to that remedy, seem not merely advisable, but, in some instances, even indispensable. See, to this effect, Howard v. Tiffany, and Minor v. Terry, before referred to.

With reference to the proper form of complaint, in the other descriptions of actions formerly of special equitable cognizance, such as, for instance, bills for specific performance of a contract for carrying out a trust under the direction of the court --for an account,-for arriving at the proper construction of disputed provisions, &c., &c.,—no special questions appear to have arisen under the Code, with the exception of those cited in the preceding chapter, and before referred to. There is, therefore, no positive rule laid down for the framing of the complaint in these cases; and, as before observed, a well-drawn bill in chancery, under the old practice, will form, accordingly, the safest guide, with the retrenchments and precautions before alluded to. The exact provisions of any instrument, sought to be either specifically enforced, or duly interpreted, should be set forth, in all cases, verbatim, where those provisions are either short or special; or else with sufficient detail and certainty to enable the court to arrive at the exact facts in controversy, from the pleadings themselves, without the necessity of having recourse to statements out of the record.

The proper form of complaint, in those cases having peculiar reference to real estate, or to matters arising out of it, remains to be treated of, before quitting the subject of the proper averments in complaint, separately considered.

In most instances, remedies of this nature are matters specially provided for by the Revised Statutes; and, at first, doubts were entertained as to whether this class of actions

could be brought at all under the Code. See Traver v. Traver, 3 How. 351; 1 C. R. 112. The contrary, however, has been settled by the following series of decisions:- Watson v. Brigham, 3 How. 290; 1C. R 67; Backus v. Stilwell, 3 How. 318; 1 C. R. 70; Myers v. Rasback, 4 How. 83; 2 C. R. 13; Row v. Row, 4 How. 133; Townsend v. Townsend, 2 Sandf. S. C.R. 711; Reed v. Child, 4 How. 125; Hamersley v. Hamersley, 7 L. O. 127; Vanderwerker v. Vanderwerker, 7 Barb. S. C. R. 221. These authorities establish, beyond a doubt, that in all cases where, under the old practice, a party was at liberty to proceed, either at equity or by petition, or otherwise under the special provisions of the revised statutes, he has still the same option; an action under the regular forms of the Code being substituted for the former bill in equity in such cases.

In all real property actions, brought under the Code, the law of the case is to be governed by the Revised Statutes, the practice by the present mode of procedure. The saving of the former is effected by sec. 455 of the present measure, as follows:

§ 455. The general provisions of the Revised Statutes relating to actions concerning real property, shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its form.

The first proceeding of this nature is that of ejectment. At 1 C. R. 19, will be found an essay on the changes in the former practice as to this species of remedy, effected by the Code. The conclusion is clear, i. e., that all the old formalities on the subject are entirely swept away, and that the action must hereafter be conducted in strict accordance with the new practice, the remedy for mesne profits being joined in the same proceeding. It seems clear, also, that it will be proper to join as defendants, all persons having an interest in the property, which will be affected by a recovery.-Wardolph v. Bortle, 4 How. 358. (See, also, the same principle enounced in Townsend v. Townsend, 2 Sandf. S. C. R. 711.)

This being the case, it is evident that if the plaintiff proceed against the tenant alone, as formerly the case, he will be liable to be met with an objection at the outset, for the want of proper parties, which it would be better to provide against at

The form of a complaint, under the new practice, will be found in the Appendix. The plaintiff should, of course,

make a distinct and positive averment as to his title, and will have to prove it at the trial, as formerly, unless admitted or not denied by the answer. On this account it would be well, in all cases, to make that averment as specific as possible; and so to frame it as that an admission or non-denial of it by the defendant, will amount to an admission of the whole case.

The subject of the notices which are requisite on the commencement of this and other real estate actions, will be found treated of at the end of the present chapter.

The next real estate action to be mentioned is that for partition of an estate-a proceeding of a peculiarly special and important nature, and to which, in fact, most of the last-cited decisions have reference. Precisely the same provision on this subject as that above cited with reference to real actions in general, is effected by sec. 448. The law in partition cases is still to be sought for in the Revised Statutes; the practice, in all cases where the proceeding is by action, is to be governed by the Code. The form of a complaint in partition, will be found in the Appendix.

Every party directly or indirectly interested in the corpus of the estate itself which is sought to be divided, at the time when the action is brought, must, of necessity, be joined, except incumbrancers, who may or may not be so, at the plaintiff's election.

Parties, however, who have parted with their title before the action is commenced, need not, and cannot be joined; and, if they are, the proceeding so taken cannot properly be sustained.- Vanderwerker v. Vanderwerker, 7 Barb. S. C. R. 221.

The complaint in partition must state distinctly and accurately the exact circumstances in relation to the interests of all parties; and, where those interests are derived under any peculiar or doubtful provision, it will be far better to set forth that provision verbatim, instead of merely abstracting it: which may be done with reference to instruments or circumstances of an ordinary nature.

Although every necessary party must be joined in a suit of this description, and it will often be expedient to make incumbrancers defendants, with a view to the due adjustment and apportionment of their charges, the plaintiff, in the latter case, should, if possible, obtain the consent of the other parties to such introduction; for, if he held to have made it unnecessarily,

he will otherwise be liable for the additional costs.-Hamersley v. Hamersley, 7 L. O. 127.

Of a very similar nature to partition, is an action brought by a widow for the admeasurement of her dower. Relief of this nature was granted by the superior court, in Townsend v. Townsend, 2 Sandf. S. C. R. 711, and, objections having been taken that the defendants were not then in actual possession of the lands there in question, and also that the action was brought within six months after the husband's death, those objections were overruled.

The complaint in this case should contain a full description of the land on which the dower attaches, with definite and positive averments of the husband's seizin and death, and of the widow's right to dower; and also that such right has not been barred, either by express provision made for her, or release or consent on her part; or, if she have exercised her election between her dower and a provision made for her, that election should be specially pleaded. The prayer for relief should be in precise analogy to that given in the form of complaint in partition, "mutatis mutandis.”

By the recent amendment in sec. 307, a previous demand and refusal is made a necessary condition precedent to an action of this nature, as far as regards the recovery of costs, which cannot otherwise be claimed.

The former action of waste, and writ of nuisance, are abolished by sections 450 and 453. The proper form of proceeding in these cases, is now by an action for relief and damages, under the present forms. In waste, the relief demanded may include forfeiture of the estate of the party offending, and eviction from the premises; and, by section 451, the law in those cases, as laid down in the Revised Statutes, irrespective of the provisions which prescribe the form of the action to be brought, is specially saved. A limitation is, however, imposed by sec. 452, on the remedy of forfeiture and eviction, which cannot be obtained, unless the injury to the reversion shall be adjudged to be equal to the value of the tenant's estate, or to have been done in malice. A distinct averment to this effect should, therefore, be inserted in the complaint, in all cases where relief of this nature is sought, in order to ground the introduction of evidence upon the subject. In Linden v. Hepburn, 3 Sandf. S. C. R. 668, 6 How. 188, where the plaintiff sought a judgment of this nature