25589. Oath and undertaking by receiver. The receiver, before he enters upon his duties, must be sworn to perform them faithfully, and, with surety approved by the court, judge, or clerk, execute an undertaking to such person, and in such sum, as the court or judge shall direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the court therein. [51 v. 57, 255; S. & C. 1019.]

2 5590. Powers of receiver. The receiver shall have power, under the control of the court, to bring and defend actions in his own name, as receiver, to take and keep possession of the property, to receive rents, collect, compound for, and compromise demands, make transfers, and generally to do such acts respecting the property as the court may authorize. [51 v. 57,2 256; S. & C. 1019.]

A receiver of an insolvent corporation may maintain an action to recover interest paid by it to a national bank under R. S. U.S. 25198, 17 Bull 366. A railroad receiver is a proper party plaintiff in a suit to restrain ditch proceedings against the company commenced after his appointment, 2 C. C. R. 10. A foreign receiver has been permitted to sue in his own name to recover property in this state, 38 O. S. 174. Leave of court must be first had before an action can be maintained against a receiver, 2 D. 336; but it is sufficient if notice of the application for leave to sue is given to the receiver only, 20 O. S. 150; railroad receivers, however, may sue and be sued without leave of court, 3415, in any county through or into which the road is constructed, ¿ 3416, though, under the federal practice, a receiver can not be sued in another court without the permission of the court appointing him, 5 Bull 533, 780. A railroad receiver is liable for injuries resulting from negligence in the operation of the road, 20 O. S. 137, 150, while the railroad company under his control is not liable, 2 Bull 249; but judgments against him can only be satisfied from funds in his hands, 20 O. S. 137. A mandamus will not be allowed against the corporation and receiver, directing their conduct in operating the road, 35 O. S. 154. A petition in an action on a promissory note, brought by a receiver, which alleged that the plaintiff was duly appointed such receiver by a court having power to appoint, and that there was due the plaintiff, as such receiver, etc., is sufficient on demurrer, 29 O. S. 499. A party injured by the negligent operation of a railroad company in the hands of a receiver, may, by leave of court, bring an action against him "as receiver," and it is no defense in such action that the receiver was a public officer, or that he was an agent or trustee, 20 O. S. 137. Set-off may be pleaded in action brought by receiver of national bank, 31 O. S. 231. Attorney's fees payable out of the fund, 35 O. S. 581. Receiver of insolvent corporation to distribute proceeds of sale of its property according to the laws relating to estates of insolvent debtors, 14 Bull 109. Levy on property in hands of, 3 C. C. R. 489.

2 5591. Investment of funds by receiver. Funds in the hands of a receiver may be invested upon interest, by order of the court; but no such order shall be made except upon the consent of all the parties to the action. [51 v. 57, 257; S. & C. 1019.]

25592. Disposition of property in hands of trustee. When it is admitted by the pleading, or on the examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court. [51 v. 57, ? 258; S. & C. 1019.]

25593. How certain orders of court may be enforced. When a court, in the exercise of its authority, orders the deposit or delivery of money or other thing, and the order is disobeyed, the court, besides punishing the disobedience as for a contempt, may make an order requiring the sheriff to take the money or thing, and deposit or deliver it in conformity with the direction of the court. [51 v. 57, 259; S. & Č. 1019.]

DIVISION VII.

SPECIAL PROCEEDINGS.

CHAPTER I.

A.MERCEMENT.

25594. Causes for which sheriff or other officer may be amerced. If an execution or order of sale directed to an officer come to his hands to be executed, and he neglect or refuse to execute it; or if he neglect or refuse to sell property of any kind which, by any writ or order, he is directed to sell; or fail to call an inquest, or to return to the clerk's office a copy of the certificate of appraisement made by the inquest; or neglect to return to the proper court an execution or order of sale to him directed on or before the return day thereof; or neglect to return a correct inventory of personal property taken on execution, unless he return that the amount of the

judgment, including costs, has been paid to him; or neglect, on demand, to pay to the person entitled thereto, any money by him collected or received for the use of such person, at any time after he collects or receives the same; or neglect or refuse, on demand, to pay to the judgment debtor all money by him received on any sale made, beyond what is sufficient to satisfy the writ or order of sale, with interest and costs, such officer shall, on motion in court, and notice thereof, in writing, as provided in the next section, be amerced in the amount of such judgment, including costs, with ten per cent. thereon, to and for the use of such plaintiff or defendant, as the case may be. [51 v. 57, ? 451; S. & C. 1084.]

The sheriff is amercible only in cases which come within the spirit as well as the letter of the statute, 10 O. 45; 3 O. S. 522; 10 O. S. 28, 77; 16 O. S. 50. He is not amercible for proceeds of goods sold under agreement of parties in a non-judicial way, 30. S. 522; nor for price of goods sold on credit by agreement of parties, 10 O. S. 77; nor if execution is for more than the proper amount, 16 O. S. 50; nor for refusal to pay over money before confirmation of sale, 2 O. 503; nor where there is no law authorizing the writ, 2 H. 173; nor for a fine collected, see 1 W. L. J. 500, for not returning copies, see Id. 104. Return by sheriff that bond was taken for redelivery of goods, and that goods were not delivered, is no excuse, 6 O. 450; nor is attachment of money received by sheriff on execution, 1 O. 275. Demand of moneys due should be made, but action may be brought before actual demand, and interest will be allowed from the commencement of the action, 2 D. 490. Amercement was not within statute of limitations, 1 W. L. J. 305; it is a penal proceeding to be strictly pursued, W. 720. On payment of amercement, sheriff is subrogated to the rights of plaintiff, 33 O. S. 85. Quare: Whether sheriff can be amerced before return, 3 O. S. 522. Amercement of attorneys, when suit dismissed, for nonattendance; for refusal to pay over moneys collected, 564; of justices of the peace, ¿ 6700, in probate court, 2 541, 542.

25595. Notice of motion for amercement. If the officer resides in the county in which the motion is made, the notice shall be served upon him at least two days before the motion is heard; but if he is an officer of another county, the notice shall be served upon him, or left at his office, at least fifteen days before the first day of the term at which the motion will be heard, or sent to him by mail at least sixty days before the first day of such term. [51 v. 57, 451; 64 v. 64, 455; S. & C. 1084; S. & S. 565.]

No pleading required, 6 O. 449, but facts must be stated in motion, 12 O. 210. Slightest variance between notice of motion

and motion itself fatal, 3 O. S. 522. When return of sheriff shows on its face a due execution of the writ, the plaintiff on motion to amerce can not go behind it, but is left to his remedy by action for false return, 12 O. 220; but date of return indorsed is not conclusive, 10 O. S. 28. Motion must be made in open court; filing it in the clerk's office is not sufficient, 3 O. S. 522.

25596. Amercement for not serving or returning process. If an officer fail to execute any summons, order, execution, or other process (1), directed to him, or to return the same, as required by law, unless he make it appear, to the satisfaction of the court, that he was prevented by unavoidable accident from so doing, he shall be amerced, upon motion and notice, as provided in 25594, in a sum not exceeding one thousand dollars, and be liable to the action of any person aggrieved by such failure; but he shall not be liable to an action or amercement for a failure to execute any such process directed to him from any county other than that in which he was elected, unless his fees are deposited with the clerk who issued the process, and an indorsement of that fact is made and subscribed by such clerk on the process, at the time of its issue, in these words: "Funds are deposited to pay the sheriff on this process." (2) [65 v. 96, ? 592; S. & S. 572.]

1. Judgment against sheriff amerced for neglect to execute final process should include the amount of the original judgment, interest thereon, costs, and ten per centum upon the whole sum thus made up; and the judgment amercement draws interest as other judgments until paid, 12 O. 210. 2. And a tender of his fees can not be substituted in place of such indorsement, 10 O. 45.

money.

25597. Clerks may be amerced for not paying over If a clerk of a court neglect or refuse, on demand, to pay to the person entitled thereto any money by him received in his official capacity for the use of such person, he may be amerced, on motion and notice, as provided in ? 5594. [ [51 v. 57, 452; S. & C. 1085.] 25598. Amount of amercement for not paying over money. When the cause of amercement is the refusal to pay over money collected, the officer shall not be amerced in a greater sum than the amount withheld, with ten per cent. thereon. [51 v. 57, 453; S. & C. 1085.]

25599. Surety of officer may be made party to judgment. A surety of an officer may be made party to the judgment rendered as aforesaid against such officer, by

action, but the goods and chattels, lands and tenements, of such surety, shall not be liable to execution when sufficient goods and chattels, lands and tenements, of the officer against whom execution is issued, can be found to satisfy the execution; and either party may proceed against the officer by attachment. [51 v. 57,? 456 ; S. & C. 1086.]

Action on judgment of amercement may be brought against sureties on official bond in the county where the amercement was had, although none of the defendants resided in such county, 14 Neb. 532; see 5025.

5600. Officer may have execution on original judgment. If an officer who is amerced has not collected the amount of the original judgment, he shall be permitted to sue out an execution, and collect, for his own use, the amount of the judgment, in the name of the original plaintiff. [51 v. 57, ? 457; S. & C. 1086.]

Where the sheriff in such case is amerced and sues out execution the process should be directed to the coroner, 33 O. S. 85.

CHAPTER II.

ARBITRATION.

5601. Arbitration of controversies. Submission may be made a rule of court. All persons who have any controversy, except when the possession or title of real estate may come in question, may submit such controversy to the arbitrament or umpirage of any person or persons, to be mutually agreed upon by the parties, and they may make such submission a rule of any court of record in the state. [29 v. 264, 1; S. & C. 80.]

Administrators and executors may submit disputed claims to arbitration at common law, 9 O. S. 333, and under the statute, 26093; 9 Bull 244; 11 Bull 117, pending suit, 9 Bull 244; 11 Bull 117 (and the fact that an executor has rejected a claim on which suit has been brought does not estop him from submitting it to arbitration, 11 Bull 117); see 5 Rec. 367; but not a claim as to real estate, 1 Clev. R. 93. Contractors or sub-contractors under mechanic's lien law, 3200, county commissioners at common law, but not so as to divert fund, 2 D. 189. Employer and employe may submit disputes to arbitration, 82 v. 45. Municipal corporations, disputed claims, for "persons" in the statute include municipal corporations, 42 O. S. 543. A partner, W. 420. Stockholders of railroads in case of sale, lease, or aid by subscription, 3302, or consolidation, 23388. At common law the submission may be revoked before award rendered, 1 D. 370; 4 O. 310; but not after the arbitrators are sworn under the statute,