CHAPTER 122. cation thereof. SEC. 31. In such case the whole penalty of the bond shall be for- TITLE XXIV, feited and recovered, and from the moneys collected thereon, the court shall order such sum to be paid to the party prosecuting the at- Recovery; appli tachment, as the court ordering the prosecution shall think proper, to satisfy the costs and expenses incurred by him, and to compensate him for any injury he may have sustained by the misconduct for which such attachment was issued; and the residue of such moneys shall be paid into the treasury of the county, in which the bond was taken, to the credit of the library fund. cient sureties. SEC. 32. If on the return of an execution, duly issued upon any Taking insuffijudgment obtained on such bond, it shall appear that the sureties taken therein were at the time of taking them, insufficient, and that the officer receiving them had reasonable ground to doubt their sufficiency, he shall be liable in an action on the case to the party aggrieved, who may have prosecuted such suit, for the amount of the judgment recovered by him, and for his costs and expenses in such suit; or if such suit was brought by the attorney general or a prosecuting attorney, an action on the case may in like manner be brought by them, in the name of the people of this state, for the amount of the judgment so recovered; and the same disposition of the moneys collected in such action on the case against such officer, shall be made, as directed in the last preceding section. SEC. 33. Whenever by the provisions of this chapter, an officer is Sickness of derequired to keep any person arrested upon an attachment in actual fendants, &c. custody, and to bring him personally before any court, the inability, from sickness or otherwise, of such person to attend such court personally, shall be a sufficient excuse for not bringing him before such court; nor shall any officer be required, in any case, to confine person arrested upon an attachment to answer for misconduct, in any prison, or otherwise to restrain him of his personal liberty, except so far as shall be necessary to secure his personal attendance. any Persons arrested, how kept. CHAPTER 122. OF PROCEEDINGS for THE COLLECTION OF DEMANDS AGAINST SHIPS, SECTION 1. Every ship, boat or vessel used in navigating the wa- What claims to ters of this state, shall be subject to a lien thereon, be a lien. 1 Wend., 557. 1. For all debts contracted by the master, owner, agent or con- 1844, p. 27. signee thereof, on account of supplies furnished for the use of such 17 J. R. 54. ship, boat or vessel; on account of work done, or materials furnished 5 do 510. by mechanics, tradesmen or others, in or about the building, repairing, fitting, furnishing or equipping such ship, boat or vessel : 2. For all sums due for wharfage or anchorage of such ship, boat or vessel within this state: 3. For all damages arising from the non-performance of any contract of affreightment, or of any contract touching the transportation of persons or property, entered into by the master, owner, agent or consignee of such ship, boat or vessel: 4. For all damages arising from injuries done to persons or prop TITLE XXIV. ! CHAPTER 122. Application for made. erty by such ship, boat or vessel, where the same shall have occurred through the negligence or misconduct of the master or hands employed thereon. SEC. 2. Any person having any such claim or demand as is spewarrant to whom cified in the preceding section, may make application to any officer authorized to perform the duties of a justice of the supreme court at chambers, or to any judge of any court of record in the county within which such ship, boat or vessel shall then be, for a warrant to enforce the lien of such claim or demand, and to collect the amount thereof. What application to specify. Warrant to be is thereof. SEC. 3. Such application shall be in writing, and shall specify the particulars of such demand, and in whose favor the same accrued, and the amount due the creditor or claimant, over and above all payments and discounts, as near as may be; and shall be verified by the affidavit of such creditor or claimant, or of some other credible person having knowledge of the facts. SEC. 4. The officer to whom such application shall be made, shall sued; contents thereupon issue his warrant to the sheriff of the county, commanding him to attach, seize and safely keep such ship, boat or vessel, her tackle, apparel and furniture, to answer all such liens as shall be established against it according to law; and to make return of his proceedings under such warrant to the said officer, within ten days after such seizure. To be executed. Return. When no other SEC. 5. The sheriff to whom any such warrant shall be directed and delivered, shall forthwith execute the same, and shall keep the boat or vessel and other property seized by him, to be disposed of as hereinafter directed. SEC. 6. Such sheriff shall also, within ten days after such seizure, make a return to the officer who issued the warrant, stating therein particularly his doings in the premises; and shall make out, subscribe and annex thereto, a just and true inventory of all the property so seized. SEC. 7. Whenever any such warrant shall be issued, no other warwarrant to be is rant shall issue against the same ship, boat or vessel, unless the first warrant be suspended. gued. Notice on return of warrant. Contents of notice. SEC. 8. Upon return being made to such warrant, the officer issuing the same shall thereupon immediately cause the notice hereinafter specified, to be published in a newspaper printed in the county in which the warrant shall have been issued, if there be one; and if there be none printed in such county, then in a newspaper printed nearest to such county, or in such paper as the officer may direct, once in each week for twelve weeks scccessively. SEC. 9. Such notice shall contain the following matters: 1. It shall state the issuing of such warrant, and the name of the ship, boat or vessel seized, or a description of it; and, if known to such officer, the port or place to which she belongs, and the name of her last commander: 2. It shall require all persons who claim to have any demands against such ship, boat or vessel, her tackle, apparel or furniture, under the provisions of this chapter, to deliver an account of their respective claims or demands to such officer, within three months from the first publication of such notice, or that their remedy against such boat or vessel will be forfeited: 3. It shall state that such ship,boat or vessel, her tackle, apparel CHAPTER 122. and furniture, will be sold for the payment of the claims against it, TITLE XXIV. unless the owner, consignee or commander thereof, or some person interested therein, appear and discharge such warrant according to law, within three months from the first publication of such notice. SEC. 10. Any person having any lien under the provisions of this How other claim. chapter, upon the property so seized, may deliver to the said officer, ants may become an account in writing of his demand, accompanied by such affidavit tors. as is hereinbefore prescribed in relation to the first application for a warrant; and he shall thereupon be deemed an attaching creditor, and be entitled to the same benefits, and subject to the same responsibilities, as the claimant at whose instance such warrant originally issued. attaching credi SEC. 11. All liens under this chapter, upon the property so seized, Liens not presen an account of which shall not be presented to the said officer within ted to cease. the time limited in the notice, shall cease. sel. SEC. 12. The owner, consignee, agent or commander, of any ship, Application for boat or vessel seized by virtue of any warrant issued pursuant to the discharge of vesprovisions of this chapter, and any person interested in such ship, boat or vessel, may, at any time before an order of sale shall be made, as hereinafter mentioned, apply in person or by attorney, to the officer who issued such warrant, for an order to discharge the same. SEC. 13. Such person shall execute and deliver to the officer to Bond on such application, whom such application is made, a bond to the creditors or claimants prosecuting such warrant, in a penalty at least double the amount of debts and claims sworn to as aforesaid, with such security as shall be approved by such officer, conditioned that the obligors therein will pay the amount of all such claims and demands as shall have been exhibited, which shall be established to have been subsisting liens upon such ship, boat or vessel, pursuant to the provisions of this chapter, at the time of exhibiting the same respectively. Proceedings to bond. SEC. 14. Upon such bond being executed and delivered, the said officer shall thereupon grant his order, discharging the warrant issued cease on giving by him; and no further proceedings against the ship, boat or vessel so seized, shall be had under the provisions of this chapter, founded upon any demands included in said bond. SEC. 15. Every such bond shall be held for the common benefit of By whom bond all the attaching creditors, and may be prosecuted by any of them may be prosecu jointly, or by any one of them separately, in respect to his separate demand. ted. declaration. SEC. 16. In the suit upon such bond, the attaching creditors re- Averments in spectively shall state in their declaration their respective demands, averring that the claim therefor was a subsisting lien on such ship, boat or vessel, at the time of the exhibition thereof, as hereinbefore provided; and shall assign as a breach of such bond, the non-payment of the claim of such creditor. SEC. 17. To such declaration the defendant may plead as in other Pleadings and actions on bonds, and may plead to such assignment of breaches; proceedings. and the same proceedings shall be had on such bond, as provided by law on bonds with other conditions than for the payment of money; and the damages may be assessed, and judgment rendered, and execution be had thereon for such damages, in the same manner. to be ordered SEC. 18. If the creditors who shall have exhibited their claims as When vessel, &c. herein provided, shall not have been satisfied, and if such warrant sold. shall not have been discharged as before provided, within the time 3 Caines, 38. CHAPTER 122. TITLE XXIV, for that purpose limited, the officer who issued the same, within one month after the expiration of the time so limited, upon due proof of the publication of the notice hereinbefore required, shall issue his order to the sheriff who seized the ship, boat or vessel under such warrant, directing such sheriff to proceed to sell the boat or vessel so seized, her tackle, apparel and furniture, and shall state in such warrant the amount necessary to be raised to satisfy such claims and expenses. When order of fied. SEC. 19. If it shall appear to such officer, that the claims exhibited sale to be modi- before him, and the expenses of the proceedings, can be satisfied by a sale of the tackle, apparel and furniture of such ship, boat or vessel, or some part thereof, without selling such vessel, he shall modify his order accordingly. Sale by sheriff. Return of sheriff after sale. Order for pub. lishing notice of distribution. Proceedings on 1 Wend., 39. SEC. 20. Within twenty days after the service of such order, the sheriff shall proceed and sell the ship, boat or vessel so seized by him, her tackle, apparel and furniture, or such part thereof as shall be sufficient to satisfy the claims exhibited, and the expenses incurred, the same notice, in the same manner, and in all respects subject to the provisions of law in case of the sale of personal property up upon on execution. SEC. 21. The sheriff shall return to the officer granting such order, his proceedings under the same; and the proceeds of such sale, after deducting his fees and expenses in seizing, preserving, watching and selling such ship, boat or vessel, shall be retained by such sheriff in his hands, to be distributed and paid as hereinafter directed. SEC. 22. At the time of issuing any such order of sale, the officer granting the same shall order a notice to be published in the same newspaper in which the notice of seizure was published, as hereinbefore directed, once in each week, for three successive weeks, requiring all persons who have exhibited any claims against such ship, boat or vessel, and the owner, agent, consignee, master, and all other persons interested in such ship, boat or vessel, to appear before him at a day therein to be specified, not less than thirty days, nor more than forty days from the first publication of such notice, to attend a distribution of the proceeds arising from the sale of such ship, boat or vessel, her tackle, apparel and furniture. SEC. 23. On the day appointed in such notice, the officer shall hear day appointed in the allegations and proofs of the parties, and make distribution of the proceeds arising from such sale, after deducting the expenses of the proceedings, among the creditors who shall have exhibited their claims as herein provided; unless the claims of such creditors, or some of them, be contested by the owner, agent, consignee or master of such ship, boat or vessel, or by some other of such creditors. Proceedings if SEC. 24. In case of such contest, the party making the objection claim contested. shall file with the officer a written statement thereof, and his request that the claims so objected to, be tried. Powers of officer in determining SEC. 25. Upon such objection and request being filed, such officer shall possess all the powers necessary for the trial and determination contested claim. of such claim, and shall proceed to hear and determine the same; and for that purpose may issue subpoenas, and compel the attendance of witnesses, in the same manner as justices of the peace are authorized by law to do in cases within their jurisdiction. Proceedings if jury required. SEC. 26. If, before proceeding to the trial of any such contested claim, either party shall request that the same be tried by a jury, such CHAPTER 122. jury shall be selected and summoned, and the same proceedings shall TITLE XXIV, be had in all respects as upon the trial of a cause by a jury in a justice's court, except that the sheriff, if present, may perform the same duties in selecting, summoning, and keeping of the jury in such case, as constables are authorized to perform in cases in justices' courts, and the venire shall be directed to the sheriff or any constable of the county. &c. SEC. 27. The determination of the officer, or the verdict of the jury, Effect of verdict, upon such trial, as the case may be, shall be final and conclusive between the parties, unless an appeal shall be taken therefrom to the circuit court for the same county, as hereinafter provided. SEC. 28. Either party considering himself aggrieved by the deter- Appeals, how tamination of such officer, or the verdict of such jury, may appeal ken. therefrom to the circuit court for the same county, within the same time, in the same manner, and a return may be compelled, and the same proceedings shall be thereupon had as near as may be, and with the like effect in all respects, as in cases of appeals from judgments rendered before justices of the peace, and costs shall be awarded and collected in such circuit court in the same manner. Distribution after contested claim. SEC. 29. Upon the final determination of such claim, the officer before whom the proceedings were pending, shall proceed to make dis- determination of tribution of the proceeds of such ship, boat or vessel, her tackle, apparel and furniture, after deducting the expenses of the proceedings before him, among the attaching creditors, according to the amount due to each. SEC. 30. When a distribution shall be made by such officer, pursuant to either of the foregoing provisions, he shall make an order on the sheriff having such proceeds in his hands, directing him to pay the same to the several attaching creditors entitled thereto, according to such distribution, and the same shall be paid accordingly; and all moneys remaining in the hands of such sheriff, after such payment, shall be paid to the owner, agent, consignee or master of such ship, boat or vessel. insufficient to SEC. 31. If the proceeds arising from the sale of any ship, boat or Apportionment vessel, shall not be sufficient, after deducting all legal charges, to sat- of proceeds if isfy all the claims against it, exhibited and established as herein pro- pay all claims. vided, the officer shall order a fair and just distribution of such proceeds among the creditors, whose claims shall have been ascertained as provided in this chapter, in a just and equal proportion to the amount of such claims respectively. warrant to file re of circuit court. SEC. 32. Every officer who shall issue any warrant pursuant to the Officer issuing foregoing provisions, shall cause the application, affidavits and proofs port of proceed presented to him by the attaching creditors, and copies of all war- ings with clerk rants issued, and of all orders made by him, with a list of the fees and expenses allowed by him, and a report of all the proceedings had or done by him, to be filed in the office of the clerk of the circuit court for the county in which the proceedings are had. Effect of report, SEC. 33. Such report, and a copy thereof duly certified by the clerk, shall be conclusive evidence that the proceedings stated there- &c., as evidence. in were had before such officer. SEC. 34. Upon such report being made, the court may correct any Court may corerrors that shall appear to have been committed in the proceedings, rect errors in and make such order as shall be just, and may remit the proceedings proceedings. to the officer who issued the warrant, or the court may proceed to do such acts and things as shall be necessary in the premises. |