custody in execution, sufficiently imports commitment to jail: Ames v. Webbers, 8 Wend. 545. 40. Damages. The measure of damages is only prima facie the amount of the debt: Ginochio v. Orser, 1 Abb. Pr. 433; Potter v. Lansing, 1 Johns. 215; Russell v. Turner, 7 Id. 189; Thomas v. Weed, 14 Id. 255; Littlefield v. Brown, 1 Wend. 398; Patterson v. Westervelt, 17 Id. 543; Fairchild v. Case, 24 Id. 381; 8 Id. 545; Hutchinson v. Brand, 9 N. Y. 208. A complaint which claimed the amount of the debt, with interest and costs, without using the word damages, is equivalent to a declaration in debt: Renick v. Orser, 4 Bosw. 384; McCreery v. Willett, Id. 643. 41. Escape, Definition of.—If a person admitted to the liberties of the jail limits is without such limits by virtue of a valid legal process which affords justification to the officer taking him thence, it is not to be deemed an escape within the meaning of 2 Rev. Stat. 437, sec. 63; although that section contains no express exception to the rule that being without the boundaries is an escape. To constitute an escape there must be some agency of the prisoner employed, or some wrongful act by another against whom the law gives a remedy: Allen on Sheriffs, 231; 4 Mass. 361; 10 Id. 206. The act of the law, as well as the act of God or of the public enemies, will excuse the sheriff in an action for escape: Wilkens v. Willett, 1 Keyes, 521, affirming S. C., sub nom. Wickelhausen v. Willett, 12 Abb. Pr. 319; 21 How. Pr. 40. 42. Excuse. Nothing but the act of God or public enemies will excuse the sheriff for an escape; Fairchild v. Coxe, 24 Wend. 381; Rainey v. Dunning, 2 Murph. 386. In California the sheriff is liable for a rescue equally as for an escape: Political Code, sec. 4183; but an action cannot be maintained for either after the prisoner returns to jail, or is recaptured by the sheriff: Id. 4184. 43. Form of Allegation in Debt.-That thereupon, the judgment remaining wholly unpaid, the defendant became indebted to the plaintiff in the sum of. dollars, the amount of said judgment: Barnes v. Willett, 11 Abb. Pr. 225; S. C. 19 How. Pr. 564; so in Renick v. Orser, 4 Bosw. 384; and McCreery v. Willett, Id. 643. This form is equivalent to a declaration in debt. 14. Indorsement.-The indorsement on the execution or writ need not be set out: Jones v. Cook, 1 Cow. 309. 45. Liability as Bail.-If, after being arrested upon an order to hold to bail, or upon a surrender in exoneration of bail before judgment, the defendant escape or be rescued, the sheriff shall himself be liable as bail; but he may discharge himself from such liability by the giving and justification of bail at any time before judgment: Political Code, sec. 4182, subd. 1. Whether a judgment creditor, injured by the escape of his debtor from arrest, elects to sue the sheriff at common law for an escape, or under sec. 201 of the Code of Procedure of New York, as bail, is manifested by the complaint. If he proceeds against the sheriff as bail, he must set forth the proceedings to, and including the escape, and allege that the defendant is bail, and must bear the appropriate judgment. If he elects to prosecute for an escape, the complaint will contain the same matters, but all allegations as to the character of the defendant as bail should be omitted, as wholly irrelevant to a cause of action for an escape. A complaint in such a case, which makes no mention of the defendant as bail, aud H contains nothing manifesting an intention or election to hold him liable in that character, is to be treated as intending an action for an escape: Smith v. Knapp, 30 N. Y. 581. 46. Negligence.-An officer who negligently permits an escape is liable to the person injured by his neglect of duty: 1 Wend. 115; 37 Ill. 257. And an escape from a deputy may be declared on as an escape from the sheriff: 9 N. H. 204. 47. Voluntary.--A complaint which alleges that "the sheriff suffered and permitted such person to escape and go at large," states a voluntary and not a negligent escape: Loosey v. Orser, 4 Bosw. 391. Under the averment that he voluntarily suffered the party to escape, a negligent escape may be proved: 2 T. R. 126; 5 Burr. 2814; 1 Saund. 35. And evidence of a negligent escape supports an action for a voluntary one: Skinner v. White, 9 N. H. 204. The plaintiff, as receiver of the property of C. D., complains, and alleges: I. [State cause of action.] II. That on the ...... day of ....... 187., at the city and county of San Francisco, and State of California, in an action then pending in the District Court of the Judicial District of said State, wherein C. D. was plaintiff and E. F. was defendant, upon an application made by the said A. B., and by order duly made by said court [or Judge], this plaintiff was appointed receiver of the property of the said C. D. hereinafter described, to wit: [Describe property so as to show that the cause of action is embraced.] III. That thereafter, and before the commencement of the present action, he gave his bond required by the said order, as such receiver, approved by the said Judge, which bond, with such approval, is on file in the said ... [Demand of Judgment.] 1. Alleging Appointment.-A receiver suing by virtue of his title and authority should state the time and place of his appointment, and distinctly aver that he has been appointed by an order of the court: White v. Low, 7 Barb. 204; Gillett v. Fairchild, 4 Den. 80; Bangs v. McIntosh, 23 Barb. 591; 5 Duer, 672; 7 Barb. 206; Dayton v. Connah, 18 How. Pr. 326. Where a receiver would make title to a chose in action, he must set forth the facts showing his appointment. It will not be sufficient to aver that he was duly appointed: Gillett v. Fairchild, 4 Den. 80; White v. Joy, 3 Kern. 86; Stuart v. Beebe, 28 Barb. 34; Tuckerman v. Brown, 11 Abb. Pr. 389. 2. Appointment of Receiver.-A receiver may be appointed by the court in which the action is pending, or by a judge thereof, before judgment provisionally, or after judgment; to dispose of the property according to the judgment, or preserve it pending an appeal; and in such other cases as are in accordance with the practice of courts of equity: Cal. Code, sec. 564569: N. Y. Code, sec. 244; Ohio Code, sec. 253. A receiver is appointed on behalf of all the parties who may establish rights in the cause, and the money in his hands is in custodia legis. Adams v. Woods, 8 Cal. 306. The appointment of a receiver is not a special proceeding within the meaning of sec. 336 of the Practice Act, nor can it, when detached from the proceedings in an action, be treated as a final judgment from which an appeal can be taken. Adams v. Woods, 21 Cal. 165; Corey v. Long, 43 How. Pr. 492. 3. Appointment Pending Litigation.-When either party establishes a prima facie right to the property, or to an interest in the property, the subject of the action, and which is in possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially injured or impaired, the court or a judge thereof may appoint a receiver: Cal. Code, sec. 564. In a foreclosure suit, the plaintiff has no right to have a receiver of rents and profits of the mortgaged property appointed pending a litigation: Guy v. Ide, 6 Cal. 101; Meyer v. Seebald, 11 Abb. (N. S.) 326, n. 4. Appointment after Judgment. In an action to recover possession of real estate, and while a motion for a new trial is pending, a receiver of the rents and proceeds of the property in dispute may be appointed, if the facts of the case are such as warrant it. If the defendant in possession is receiving monthly large sums of money from the sale of the waters of mineral springs on the land, and is insolvent, a receiver may be appointed, pending the further litigation, on motion for a new trial and appeal: Whitney v. Buckman, 26 Cal. 447; see Code C. P., sec. 564. 5. Bound by Order of Court.-Receivers, or other custodians of money in the hands of a court, as they are bound to obey orders of the Court in their relation to the fund, as well as regards its safe custody as its return, are co-relatively entitled to the protection of the Court against loss for disbursements which were necessary and proper, and such as a reasonable and prudent man, acting as receiver, would have been justified in expending: Adams v. Haskell, 6 Cal. 475; Guardian Savings Inst. v. Bowling Green S. 1., 65 Barb. 275. 6. County Judge.-Under the statute, the County Judge may grant an injunction in cases in the District Court, but he cannot appoint a receiver; at least, not as a thing distinct from the injunction: Ruthrauff v. Kresz, 13 Cal. 639. 7. Courts of Equity.-Courts of equity have the power to appoint receivers, and to order them to take possession of the property in controversy, whether in the immediate possession of the defendant or his agents; and in proper cases, they can also order the defendant's agents or employees, although not parties to the record, to deliver the specific property to the receiver: Ex parte Cohen, 5 Cal. 494. But they cannot appoint a receiver, and decree a sale of the property and affairs of a corporation: Neall v. Hall, 16 Cal. 148. Such a decree would necessarily result in a dissolution of the corporation: Id. Under subdivision 5, sec. 564, Cal. Code C. P., a receiver may be appointed when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. Where the allegations of a bill are general, and the equities are fully denied, such a case is not presented as will justify the appointment of a receiver, and the withdrawal of the property from the hands of one intimately acquainted with all of the affairs of the concern and placing it in the hands of another, who may not be equally competent to manage the business. Williamson v. Monroe, 3 Cal. 383. 8. Describing Himself.-Describing himself as "having been duly appointed receiver of, etc., and bringing this suit by order of the Supreme Court," is insufficient on demurrer: See authorities cited above, note 1; see, also, Dayton v. Connah, 18 How. Pr. 326. 9. Disbursements of Receiver.-An order of Court directing a referee "to ascertain and report the amount of disbursements and expenses made with or under the direction and authority of the Court," by a receiver or custodian of money in the hands of the Court, is too narrow to do him justice, and should be so enlarged as to allow for all reasonable and proper expenses incident to the receivership: Adams v. Haskell, 6 Cal. 475. And this, although the claim is for disbursements, incurred by the custodian of the fund, under an appointment as assignee in a proceeding in insolvency, which was afterward held to be void: See, also, O'Mahoney v. Belmont, 37 N. Y. 223. 10. Discretion of Court.-The appointment of a receiver rests in the sound discretion of the Court upon a view of all the facts; one of which is, that the party asking the appointment should make out a prima facie case; and after an ex parte appointment has been made, the order may be vacated, either before or after the trial, upon a proper showing: Copper Hill Min. Co. v. Spencer, 25 Cal. 15. 11. Leave of Court.-Leave to sue need not be averred, as it is not one of the facts constituting the cause of action: Finch v. Carpenter, 5 Abb. Pr. 225; see Code C. P. sec. 568; 20 Ohio St. 137. 12. Liability of.-A receiver is personally liable to persons sustaining loss or injury by or through his own neglect or misconduct; but for the neglect or misconduct of those employed by him in performance of the duties of his trust, he is liable only in his official capacity, and the judgment against him, if any, must be made payable out of the funds in his hands as receiver: Camp v. Barney, 4 Hun. 373; see, also, Miller v. Loeb, 64 Barb. 454; Potter v. Bunnell, 20 Ohio St. 151; Meara v. Holbrook, Id. 137. In this case it was held, that where a railroad was operated by a receiver, a party injured may, by leave of the Court appointing the receiver, maintain an action against him as such, for injuries sustained, and that it is no defense in such action that the receiver was a public officer, or that he was an agent or trustee. 13. Mining Claims. The purchaser at a judicial sale of a mining claim, may, where the judgment debtor remains in possession, working the claims, and is insolvent, have a receiver appointed to take charge of the proceeds, during the period allowed by the statute for redemption: Hill v. Taylor, 22 Cal. 191. 14. On Application for Injunction.-If notice is given of an application for an injunction, and the petition prays for an injunction, the judge, on the hearing, may appoint a receiver, if the facts make out a proper case for a receiver, and no objection is made on the ground of want of notice of the application: Whitney v. Buckman, 26 Cal. 447. 15. Pleadings.--Of the proper mode of complaining in an action by a receiver, of departure from the complaint in the reply, and of the proper mode of seeking relief where the reply departs from the complaint, see White v. Joy, 3 Kern. 83; reversing S. C. 11 How. Pr. 36; 2 Abb. Pr. 548. 16. Powers and Duties of Receiver.-A receiver may employ counsel: Adams v. Woods, 8 Cal. 315. Upon the application of the receiver, in the suit for dissolution, he can obtain the necessary proceedings for procuring a correct application of the balance of a judgment held by the partnership against a third party, after paying the judgment creditor of the partnership: Adams v. Hackett, 7 Cal. 187. A receiver can pay out nothing, except on an order of the court; but there are exceptions to the rule; nor will he be denied reimbursements in every case in which he neglects to obtain the order, especially in a court of equity: Adams v. Woods, 15 Cal. 207; Adams v. Haskell, 6 Cal. 475. It will not be presumed that the receiver has transcended his duties, and taken possession of property to which he was not entitled; nor is the opposite party entitled to have issues framed and submitted to a referee or jury to ascertain the ownership of the money in the receiver's hands; Whitney v. Buckman, 26 Cal. 451. 17. Receiver in his own Name.-As to the cases in which a receiver may sue in his own name and without averring his appointment, see White v. Joy, 13 N. Y. 83; Bank of Niagara v. Johnson, 8 Wend. 645; Haxtun v. Bishop, 3 Id. 13. 18. Receiver of Insurance Company.-Where a plaintiff claims title to a note sued on by virtue of his appointment as receiver of an insurance company, the note being payable to a company bearing a name different from that of the company of which he is receiver, it is necessary that he should, by proper averments, show that the note is a part of the assets of the company of which he has been appointed receiver: Hyatt v. McMahon, 25 Barb. 457. If the change of name was by reorganization of the company under the general act, a general averment of the fact of reorganization is enough. 19. Setting aside Assignment.—Where a receiver brings an action to set aside an assignment, he must state in his complaint the equity of the party whose rights he represents, to maintain the action which he attempts to prosecute. A receiver in general is not clothed with any right to main |