in connection with equitable relief, it was held that he could not obtain both in the same proceeding, but must be put to his election. The complaint should, therefore, under similar circumstances, be framed accordingly. Of course, the nature of the waste complained of, and the title of the party seeking the remedy, must be distinctly and positively stated, in order to ground the right to any relief at all. And, in an action for a nuisance, the nature and extent of the act complained of, and of the injury resulting therefrom to the plaintiffs, must also be clearly and positively averred; in order at once to ground a claim for adequate damages, and also for the guidance of the court in making a proper order for its cessation or removal.

By section 449, it is provided that proceedings to compel the determination of claims upon real property, under the provisions of the Revised Statutes, (2 R. S. 313), may be prosecuted by action under the Code. The very nature, however, of these proceedings, commencing as they do with the service of a special notice, and carried on, as they are, in a manner totally inconsistent with the ordinary forms of an action, seems to render this impossible in practice, and it was accordingly so held in Crane v. Sawyer, 5 How. 372; 1 C. R. (N. S.) 30. The remedy, therefore, in these cases, seems to be exclusively under the forms of the Revised Statutes, and not to be otherwise obtainable.

The last proceeding of the above nature is that of foreclosure. A form of complaint in this proceeding is given in the Appendix. It is essential that the nature of the security, its due record, and the defendant's failure to pay the amount of principal and interest, should be distinctly averred, and a full description of the premises must be given, in order to form an adequate ground for the relief to be obtained on the decree.-See Rule 49 of the Supreme Court. Every junior incumbrancer known at the time of the bill, should be made a party, and, for this purpose, the records should be carefully searched; if not, the whole proceeding would be nugatory, as far as regards the rights of the parties omitted. The wife of the party entitled to the equity of redemption, and also the widow of any deceased party so entitled, must also be joined, or the decree will be of no force pro tantoDenton v. Nanny, 8 Barb. S. C. R. 618; where, too, a widow had actually been made a party in another capacity, no issue being raised as to her right of dower, and, in that capacity, suffered

judgment to be taken against her pro confesso, her right to dower was held not to be affected. Her claim in that respect was paramount to the mortgage, and therefore she had no right to suppose that that claim would be called into question, whatever might be the case as regarded her subsequent interest.— Lewis v. Smith, 9 L. O. 292. In no case are senior incumbrancers necessary parties, and it would seem from the last case that they are not even proper ones, unless for the purpose of ascertaining the amount of their incumbrances, in order that the same may be duly provided for on a sale taking place. Where infants are interested in the estate sought to be foreclosed, the nature of their interest, and whether it is paramount or subordinate to that of the plaintiff, must be shown by specific allegation. The ordinary allegation that such infants claim some interest in the premises is not sufficient, as the facts cannot be taken as admitted as against them, and there must be some averment to sustain the requisite proof.-Aldrich v. Lapham, 6 How. 129; 1 C. R. (N. S.) 408.

The above points, must, of course, be carefully borne in mind in preparing the complaint in cases of this nature, and, in general, where any party is interested in more than one capacity, care must be taken to frame the statements so comprehensively as to include every possible interest which such party may possess. Of course, too, any peculiar circumstances connected with the security, as for instance, if the mortgagee have been in possession, must be distinctly averred; and in the latter case, the results of any accounts between these parties, which will tend to show the exact sum then due in respect of the security, must be correctly stated; and it may be expedient to annex copies of the accounts themselves to the complaint, with a view to obtain an admission or non-denial of their correctness. The observation made in a previous part of the chapter, with regard to fixing the venue in these cases, will have been noticed. It must be in the county, or one of the counties, where the premises are situate, irrespective of that in which the loan itself may have been actually transacted.

The long and complicated question, as to the proper averments in the different forms of complaint, having thus been disposed of, we arrive, in the third place, at a subject of even greater importance, though not of equal complexity, i. e., the proper demand of the relief sought for. The observations on

this subject have, however, been in a great measure anticipated by the considerations upon sec. 167, stated at the outset of the chapter. It has there been shown, that the nature of the action will be determined by this part of the complaint; and that however the statements in the body of the pleading may show a title to any peculiar species of relief, apart from that formally demanded, the relief so omitted to be asked for cannot be obtained. See, especially, Spalding v. Spalding, 3 How. 297; Dows v. Green, 3 How. 377; Chapman, v. Webb, 1 C. R. (N. S) 388; Otis v. Sill, 8 Barb. S. C. R. 102; and Cahoon v. The Bank of Utica, 4 How. 423; 3 C. R. 110, before cited. In The Commercial Bank v. White, 3 How. 292, it was considered that alternative relief could not be demanded in respect of the same transaction, where the two forms of relief asked for fall under two distinct classes of the actions enumerated in sec. 167, incapable of being joined under the provisions of that section.

The proper classification of the action is, therefore, above all, most important to be attended to by the pleader, in framing his prayer; where there is either any doubt as to the exact remedy obtainable, or where any election has to be made between different forms of remedy, obtainable under the same state of circumstances. In this latter case, above all, the most careful exercise of judgment will be found necessary. Objections of this nature fall, however, more peculiarly under the head of demurrer, and, therefore, it would be premature to enumerate them here in detail. In the chapter devoted to that branch of pleading, the subject in general and the decisions in reference thereto, will be found fully entered upon.

Where a simple money recovery is sought, the demand of judgment for the amount claimed, with interest from the date of the original claim, or last settlement of account, is all that is necessary. In actions where pecuniary damages are alone asked for, unaccompanied by other relief, the form is even simpler, the demand of interest being, of course, incompatible; where, however, as in actions in respect of waste or nuisance, relief is required as well as damages, it must not be forgotten to be asked for. It is in actions for relief as such, that the exercise of ingenuity and thought will, above all, be required, as regards this portion of the complaint, on the due framing of which everything will, in fact, depend. Every possible remedy which the court may have in its power to grant under the

peculiar circumstances, should, therefore, be carefully pondered over, and every one of those remedies should be distinctly and in terms asked for; unless, under the circumstances of the case, it be thought better to waive them in any respect. Injunction, in particular, cannot be granted at all in respect of facts existent at the date of the complaint, unless that remedy be specially prayed for; and, where the appointment of a receiver is part of the relief sought before, or as part of the judgment, a demand to that effect must also be inserted. In fact, every species of relief which is or may be required, should be asked for specifically and in terms; and in no case should the usual concluding clause, praying "for such further or other relief as the court may direct," be omitted on any account. In actions for the recovery of real or specific personal property, it must not be forgotten, that a claim for damages for withholding, and also, in the former case, a claim for mesne profits is, in all cases, compatible with a claim for the recovery of the property itself; and a prayer to this effect should always, as a general rule, be subjoined to the main relief demanded.

The pleader must, however, take special care that in praying relief, he does not ask for any that is inconsistent. Thus in Linden v. Hepburn, 3 Sandf. S. C. R. 668, 6 How. 188, where the plaintiff sought to enforce a forfeiture, and also to obtain equitable relief, in respect of the same transaction, it was held that he could not ask for both conjointly, but must make his election between the two species of remedy.

See, also, as to alternative relief of an inconsistent nature, the cases cited at the outset of this chapter, in reference to sec. 167.

Where, however, the plaintiff is entitled to both legal and equitable relief under the facts averred, and such relief is not inconsistent in its several parts, he may obtain it by means of the same proceeding, and it should be prayed for accordingly. -Linden v. Hepburn, above cited; Getty v. The Hudson River Railroad Company, 6 How. 269, 10 L. O. 85.

The general requisites of complaint, separately considered, having thus been gone through, it remains to notice the proceedings necessary for its due completion and service. This branch of the subject has, however, in a great measure, been anticipated in the chapter as to the formal requisites of pleading. The manner in which the complaint, when prepared, must be copied, subscribed, and verified, is there fully pre

scribed; and it would be superfluous to enter a second time upon the same details. The only remark necessary, is, that the strictest compliance with the directions there given, is virtually essential. The complaint having been perfected, a copy of it must be served upon the opposite party, either personally as annexed to the summons, or on him or his attorney afterwards, if he give regular notice of appearance, and demand a copy. The mode of service, in this latter case, differs in no respect from that of ordinary papers in the suit, and will be found prescribed in the chapter devoted to the consideration of those subjects.

The proceedings to be taken by the defendant for that purpose, the time within which the copy so demanded by him must be served, and the consequences to the plaintiff if he omit to do so, will be found fully detailed in the succeeding chapter. The questions as to where it may, or may not, be expedient to serve a copy of the complaint in company with the summons, have also been before enlarged upon, in the chapter devoted to the consideration of that proceeding. As a general rule, it will be advisable in all cases, for the obvious reason, that an omission to do so will enable the defendant, as of course, to obtain additional time to answer. Where, however, the defendants are numerous, and are likely to appear in classes, and more than one by the same attorney, service of the summons alone will usually be the more convenient course; and, when the service is by publication, that is the only admissible mode.

As before also noticed, the filing of the complaint is, at one time or other, essential. In ordinary cases, it seems it need not be placed on record until the actual entry of judgment, whether a copy have, or have not, been served on the opposite party, notwithstanding the decision to the contrary effect in Toomey v. Shields, 9 L. O. 66.

Where service takes place by publication, it is, however, necessary that the complaint should be filed at once, and before the issuing of the summons, or the proceeding will be irregular. In real actions, also, it is now necessary, under the recent amendment of sec. 132, that the complaint should be filed at the outset of the suit, inasmuch as, until that is the case, the notice of pendency of action cannot be placed on record. Under the Code of 1849, this was otherwise, and it was there provided that the notice in question might be given at "the time of commencing the action," without reference to the complaint being,