ings; all that the pleadings need disclose is, that the action pending is one of a class in which the appointment of a receiver is authorized, and the special reasons therefor may be set out on a motion. A receiver, in the absence of statutory authority, can neither sue nor be sued without leave of the court by which he was appointed. And where a receiver is not authorized to sue in his own name by statute, or in a proper case by the court appointing him, he cannot do so, but must sue in the name of the corporation or person in whom was the right of action before the appointment of the receiver. So it has been held to be essential in an action by or against a receiver, to aver in the complaint that leave to bring the action had been granted by the proper court.5 But on the other hand, the omission of the averment was held to be no ground of demurrer to the complaint. And in an action against a corporation, it was held that the defendant could not plead either in bar or abatement, that such corporation was in the hands of a receiver, and that such action was brought without leave of the court in which such receiver was appointed, though by bringing such suit without leave the plaintiff may have been guilty of a contempt. In an action by a receiver, a mere denial that he was properly qualified as such is not sufficient to put that fact in issue, but the facts relied upon should be specially pleaded. Where the answer merely denies the plaintiff's appointment as receiver, such appointment being proved shows the plaintiff's legal capacity to sue, and the objection not having been taken by demurrer or answer must be deemed to have been waived.9

1 Hottenstein v. Conrad, 9 Kan. 435; Commercial etc. Bank v. Corbett, 5 Sawy. 172; Manley v. Rassiga, 13 Hun, 288.

2 Hottenstein v. Conrad, 9 Kan. 435.

3 Foster v. Townshend, 2 Abb. N. C. 29: 68 N. Y. 203; Battle v. Davis, 66 N. C. 252; Winfield v. Bacon, 24 Barb. 154; King v. Cutts, 24

Wis. 627; De Groot v. Jay, 30 Barb. 483; In re Platt. 9 Jones & S. 513; Higgins v. Wright, 43 Barb. 461; Barton v. Barbour, 3 McAr. 212; 36 Am. Rep. 104; 104 U. S. 126. And see Meara v. Holbrook, 20 Ohio St. 137.

4 King v. Cutts, 24 Wis. 627; Newell v. Fisher, 24 Miss. 392; Manlove v. Burger, 38 Ind. 211; Yeager v. Wallace, 44 Pa. St. 294; Battle v. Davis, 66 N. C. 252.

5 Garver v. Kent, 70 Ind. 428; Moriarty v. Kent, 71 Ind. 601; Keen v. Breckenridge, 96 Ind. 69. And see Herron v. Vance, 17 Ind. 595; Coope v. Bowles, 28 How. Pr. 10; Watts v. Everett, 47 Iowa, 269; Scofield v. Doscher, 72 N. Y. 491.

6 Leuthold v. Young, Sup. Ct. Minn. 19 N. W. Rep. 652; 32 Minn. 122. And see Finch v. Čarpenter, 5 Abb. Pr. 225. That the objection can be taken only before answer: See State v. Cason, 11 S. C. 392.

7 Ohio etc. Railroad Co. v. Nickless, 71 Ind. 271.

8 Goodhue v. Daniels, 54 Iowa, 19. 9 Manseau v. Mueller, 45 Wis. 430.

? 191. Recognizance.-An action on a forfeited recognizance must be brought in the name of the State.1 In New York, whenever any recognizance to the people is forfeited, the district attorney of the county in which it was taken is the proper officer to prosecute for the alleged breach.2 It is not necessary to insert in a complaint on a forfeited recognizance a copy of the order of forfeiture, nor to allege that the order of forfeiture was "duly made."3 Nor need the complaint aver non-payment of the penalty. Nor is it necessary in such action to allege or prove any damages, by reason of the breach of the condition.5 And where the condition of a recognizance is to do an act for which a recognizance may properly be taken, and the officer had authority, in law, to act in cases of that general description, a complaint upon such recognizance need not set out the particular facts and circumstances which gave the officer authority to take it. Under an averment in the complaint, that "the bond was taken in writing in such manner and form as the law provides and directs," it will be understood that all the requirements of the law applicable in such cases were complied with. In an action upon a forfeited recognizance, given upon the continuance of a criminal cause from

one term to another, an allegation of the filing of an information, an order of continuance, etc., is sufficient, without averring a prior arrest, a preliminary examination, or a waiver of one. But a complaint in an action on a recognizance for the defendant's appearance in a criminal case should show that the prisoner was charged with a crime, and it is not sufficient to state that he was charged with "shooting and killing another. In such action, the sureties cannot set up as a defense the fact that the amounts in which they justified were insufficient under the statute; 10 the justification is no part of their contract, and in no manner affects their liability. To maintain an action upon a recognizance given upon the conviction of one as a disorderly person, for neglecting to support his wife and children, it must be made to appear that subsequent to the giving of the bond the person has been guilty of such neglect; 12 the conviction is not evidence of a subsequent breach of the condition of the recognizance.13

1 Gamble v. State, 21 Ohio St. 183; Clark v. Petty, 29 Ohio St. 452. See Shelby County v. Simmonds, 33 Iowa, 345.

2 N. Y. Code Civ. Proc. 1966; People v. Meyers, 1 Sheldon, 429. An action on a forfeited bail bond may be brought in the name either of the people or of the county, and the district attorney is authorized to bring the action: People v. De Pelanconi, 63 Cal. 409.

3 Rheinhart v. State, 14 Kan. 318.

4 State v. Grant, 10 Minn. 39.

5 N. Y. Code Civ. Proc. 1966. A complaint on a forfeited recognizance alleging the jurisdiction of the court, and its entry of judgment of forfeiture, was held sufficient: Friedline v. State, 93 Ind. 366.

6 People v. Kane, 4 Denio, 530; Champlain v. People, 2 N. Y. 83; People v. Millis, 5 Barb. 511. And see McLaughlin v. State, 10 Kan. 581.

7 Shelby County v. Simmonds, 33 Iowa, 345.

8 Jennings v. State, 13 Kan. 80. And see Mix v. People, 26 Ill. 32. 9 Hannah v. Wells, 4 Oreg. 249. But see dissenting opinion by McArthur, J.: Hannah v. Wells, 4 Oreg. 255.

10 People v. Shirley, 18 Cal. 121.

11 People v. Shirley, 18 Cal. 121. See People v. Tubbs, 37 N. Y. 586; People v. Cushney, 44 Barb. 118; People v. Cook, 30 How. Pr. 110.

12 People v. Pettit, 74 N. Y. 320.

13 People v. Pettit, 74 N. Y. 320.

2

2132. Redemption. - One who brings suit to redeem from a mortgage must show by his complaint that he has an interest in the equity of redemption.' The doctrine is, that when a person other than the mortgagor sues to redeem mortgaged premises, his complaint must show that he has some title or interest in the land derived immediately or remotely through the mortgagor, or in some way springing out of his general equity of redemption; and it must show the nature and derivation of the title or interest claimed, that the defendant may, by his answer, admit or deny it, and be prepared to meet it in evidence, or refer the question of its sufficiency to the court by demurrer.3 So in a suit to redeem lands sold under foreclosure, the complaint must show affirmatively that the plaintiff was not made a party defendant in the foreclosure suit; the law presumes that the proper parties were before the court, and the complaint must negative that presumption.5 A complaint to redeem, in order to be good, must contain an averment of a readiness to pay, or an offer to pay whatever is found to be due. But one who has purchased mortgaged lands at a sheriff's sale, if not mnade a party to a suit to foreclose brought before his right to a sheriff's deed matures, may, after his title matures, redeem, and in such case the complaint to redeem need not aver a tender or offer to pay the money necessary to redeem; it is sufficient where an accounting of rents is also sought to allege that the plaintiff is ready and willing to redeem when the amount necessary to be paid therefor shall be ascertained, and intends so to do, and that he has demanded an accounting which was refused. And in cases where the amount due can be made a lien on the land, it is unnecessary to make a tender before suit to redeem ;9 it is enough to make the offer in the pleading to pay the

amount when it is ascertained.10 Where the complaint embraced the features of a bill quia timet, and also of a bill to redeem, and contemplated the possibility of a balance being found due on the mortgage, demanding such relief as would be agreeable to equity on that state of facts, an offer to pay any balance which might be found due was held to be unnecessary." Where a purchaser at sheriff's sale induces the owner of real estate not to redeem, by a promise to hold the property until repaid out of the rents and profits, and then to return the property, the promise is not void under the statute of frauds,12 and a complaint alleging these facts contains a good cause of action.13

1 Lamb v. Jeffrey, 47 Mich. 28. See Boone Mort. 160.

2 Smith v. Austin, 9 Mich. 465. And see Chamberlin v. Chamberlin, 12 Jones & S. 116.

3 Smith v. Austin, 9 Mich. 465.

4 Dervin v. Jennings, 4 Neb. 97; Carpentier v. Brenham, 50 Cal. 549. See Henley v. Whiffen, 54 Iowa, 555; Walker v. Schreiber, 47 Iowa, 532; Reel v. Wilson, Sup. Ct. Iowa, 19 N, W. Rep. 814.

5 Dervin v. Jennings, 4 Neb. 97, 100.

6 Silsbee . Smith, 41 How. Pr. 418; 60 Barb. 372; Kemp v. Mitchell, 36 Ind. 249; Anson v. Anson, 20 Iowa, 55.

7 Nesbit v. Hanway, 87 Ind. 400.

8 Nesbit ". Hanway, 87 Ind. 400. And see Kissel v. Eaton, 64 Ind. 248; May v. Fletcher, 40 Ind. 575; Anson v. Anson, 20 Iowa, 55.

9 Coombs v. Carr, 55 Ind. 303.

10 Turner v. Parry, 27 Ind. 163; Lynch v. Jennings, 43 Ind. 276; Ruckle v. Barbour, 48 Ind. 274.

11 Beach v. Cooke, 28 N. Y. 508.

12 See Butt v. Butt, 91 Ind. 305; Rector v. Shirk, 92 Ind. 31.

13 Scheffermeyer v. Schaper, 97 Ind. 70. If the complaint states facts showing that the plaintiff had a right of redemption, and that he was deprived of it by the wrongful act of the defendant, it states a cause of action, and it is not necessary to allege a tender, nor need the complaint contain an offer to pay the amount due: Kling v. Childs, 30 Minn. 366.

2193. Reformation of instrument. - Generally speaking, reformation of a written instrument may be granted in cases of mutual mistake, and in cases of fraud, and also where there is a mistake on one side and fraud on the other.1 But where the complaint alleges mistake