TITLE XXIV. CHAPTER 125. Notice to owner, &c. When notice to be posted up in public places. When notice to be published in newspaper. Proceedings if owner dissatis care and inspection of the person who distrained them, and he shall furnish them with suitable food and water so long as they remain impounded. SEC. 8. When beasts are impounded for either of the causes aforesaid, the person impounding them shall, within twenty-four hours thereafter, give notice thereof to the owner or person having the care or control of them, if known, and living within six miles from the place of impounding, which notice shall be delivered to the party, or left at his place of abode, and shall contain a description of the beasts, and a statement of the time, place and cause of impounding. SEC, 9. If there shall be no person entitled to notice according to the provisions of the preceding section, the person impounding the beasts shall, within forty-eight hours thereafter, cause to be posted up in three public places in the township, and in a public place in each of any two adjoining townships, if within four miles from the place where they were taken, a written notice, containing a description of the beasts, and a statement of the time, place and cause of impounding. SEC. 10. In case notice shail be given by posting up the same, if no person shall appear to claim the beasts within seven days after the day of impounding, a like notice shall be published for three successive weeks, in some public newspaper, if any there shall he published within twenty miles of the place of impounding, the first publication to be within fifteen days after the day of impounding. SEC. 11. If the owner or keeper of the beasts shall be dissatisfied fied with claim. With the claim of the person impounding them, he may have the amount for which he is liable, ascertained and determined by two disinterested and discreet persons, to be appointed and sworn for that purpose by a justice of the peace; and the sum determined by them shall be received instead of the sum demanded by the person who impounded the beasts, and they shall thereupon be delivered to the owner or keeper thereof. Ib. If sum not paid, SEC. 12. If the sum for which the beasts are impounded and detained, shall not be paid within fourteen days after notice of the impounding shall have been given, as before directed, or after the last publication of such notice in a newspaper, and shall not have been determined as aforesaid, the person who impounded them shall apply to a justice of the peace, and obtain a warrant to two disinterested and discreet persons, to be appointed and sworn by the justice; and the persons so appointed and sworn, shall ascertain and determine the sum due from the owner or keeper of the beasts, for the damages, costs and expenses for which they are impounded and detained, including a reasonable compensation for their own services. SEC. 13. If the sum so found to be due, shall not be forthwith paid, beasts to be sold. the person who impounded the beasts shall cause them to be sold by auction in the township where they are impounded, first advertising the sale by posting up a notice thereof in three public places in the same township, at least five days before such sale. How proceeds disposed of. SEC. 14. The proceeds of the sale, after paying all the said damages, costs and expenses, with the charges for advertising and selling the beasts, shall be deposited in the treasury of the township, for the use of the owner of the beasts, in case he shall substantiate his claim thereto, within two years from the time of sale. SEC. 15. If any beasts that shall have been lawfully distrained or TITLE XXIV. impounded, shall escape or be rescued, the pound-keeper or person CHAPTER 125. who distrained them, may, at any time within seven days thereafter, retake such beasts, and hold and dispose thereof, as if no escape or Beasts escaped rescue had taken place. or rescued may be retaken. trained. SEC. 16. If any person shall rescue any beasts, distrained or im- Penalty for respounded for any cause, he shall be liable to an action on the case, to cuing beasts disbe brought by any person injured, to pay all damages which such person shall have sustained thereby, and all the fees and charges which shall have been incurred before the rescue, and shall also forfeit a sum not less than five, nor more than twenty dollars. tress to be tried SEC. 17. The defendant in any action brought for rescuing beasts Legality of disdistrained or impounded, shall not be allowed to allege or give in evi- only in action of dence the insufficiency of the fences, or any other fact or circum- replevin. stance to show that the distress or impounding was illegal; but if there is any ground of objection to the proceeding, of which he is entitled to avail himself, he may have the advantage thereof in an action of replevin, to be brought as provided in the following sections. Replevin of Beasts Distrained. SEC. 18. Any person whose beasts are distrained or impounded, in Owner may have order to recover any penalty or forfeiture supposed to have been in- writ of replevin. curred by their going at large, or to obtain satisfaction for any damages alleged to have been done by them, may have a writ of replevin therefor out of the proper court, and the same proceedings shall be had thereon as in other cases of replevin, except as hereinafter provided. SEC. 19. Such writ shall not be executed in any case, unless the Affidavit to be anplaintiff in the action, or some person knowing the facts, shall make nexed to writ. and annex to the writ an affidavit stating therein that the beasts, describing them, have been distrained or impounded, and are detained by the defendant, and that the plaintiff therein is the owner of such beasts, or that he has a lawful right to the possession thereof. failure. SEC. 20. The writ shall be served, and the property shall be ap- Bond to be given; praised, and before delivery thereof to the plaintiff, a bond shall be consequence of given, in like manner, and with the same effect as in other cases of replevin; but such property shall not be removed by the officer until such bond shall be given; and if such bond be not given within the time limited for that purpose, the property shall be relinquished by the sheriff, and such failure shall be deemed a discontinuance of the suit by the plaintiff. Judgment for de be rendered. SEC. 21. If the beasts shall be replevied and delivered to the plaintiff, and judgment of non-suit or of discontinuance be rendered fendant, how to against the plaintiff, or if it appear on the trial, that the beasts were lawfully distrained, the defendant shall have judgment for such sum as shall be due from the plaintiff, for the penalty or forfeiture, or for the damages for which the beasts were impounded, together with all the lawful fees, costs, charges and expenses incurred by reason of the distress, to be assessed as in other cases, and also his costs of the action of replevin. plaintiff. SEC. 22. If the plaintiff shall recover judgment against the defend- Judgment for ant by default, or if it shall appear upon the trial, that the beasts were distrained without any sufficient or justifiable cause, the plaintiff shall recover his damages caused by the unlawful detention of such TITLE XXIV. beasts, to be assessed as in other actions of replevin, together with his costs of suit. CHAPTER 126. Lien on real property for labor certain cases. 1840, p. 40. CHAPTER 126. OF THE LIEN OF MECHANICS AND OTHERS. Of certain Liens upon Real Property. SECTION 1. Every person who shall, by contract with the owner of Referals in any piece of land, furnish labor or materials for erecting or repairing any building, or the appurtenances of any building, on such land, shall have a lien upon the whole piece of land, not exceeding one quarter of a section, including such building, in the manner hereinafter provided, for the amount due to him for such labor or materials. SEC. 2. Such lien shall not attach unless the contract is made in unless contract in writing, and signed by the owner of the land, or by some person duly authorized by him, and acknowledged, and recorded in the office of the register of deeds of the county where the land lies. Lien not to attach writing, &c. When lien dissolved. When creditor may apply for order to sell. tion. SEC. 3. The lien shall be dissolved at the expiration of six months after the time when the money due by the contract, or the last instalment thereof, shall become due and payable, unless proceedings for enforcing the lien shall have been commenced within the said six months. SEC. 4. When any sum due by such contract, shall remain unpaid for the space of sixty days after the same is payable, the creditor may, upon a petition to the circuit or county court for the county in which the land lies, obtain an order for the sale thereof, and for applying the proceeds to the discharge of his demand. SEC. 5. The petition may be filed, either in term, or in vacation, and Contents of peti- shall contain a brief statement of the contract on which it is founded, and of the amount due thereon, with a description of the premises which are subject to the lien, and all other material facts and circumstances, and shall pray that the premises may be sold, and the proceeds of the sale be applied to the discharge of the demand. Order that owner appear and answer. Notice of order tition io be serv. SEC. 6. Upon filing the petition, an order may be entered of course, that the owner of the land appear and answer such petition within twenty days after service of notice of such order, and of a copy of the petition upon such owner. SEC. 7. Notice of such order, and a copy of the petition, shall be and copy of pe personally served upon such owner, if he resides within this state, and notice of the filing of the petition and entry of such order, shall also be served upon all other creditors who shall have a similar lien upon the same lands. ed. When notice to be published in newspaper, &c. Contesting claims. SEC. 8. If it shall satisfactorily appear to the court that such owner resides out of this state, such court shall make an order that notice of filing such petition be given to all persons interested, by publishing the same, together with the substance of the petition, in some public newspaper printed or circulating within the county, for six successive weeks. SEC. 9. Every creditor having a lien of the kind before mentioned, upon the same land, may appear and prove his claim, and the owner LIEN OF MECHANICS AND OTHERS. 555 CHAPTER 126. may appear and disprove the same, and each of said creditors shall TITLE XXIV. SEC. 10. Every material question of fact shall be submitted to a Trial of questions an issue formed under the direction of the court, or otherwise, as the court shall order. All claims pre- preSEC. 11. The court shall examine all the claims that shall be sented, and shall ascertain and determine the amount due to each termined. creditor who has a lien of the kind before mentioned, upon the estate in question, and every such claim that is due absolutely and without condition, although not then payable, shall be allowed with a rebate of interest to the time when it would become payable. any ance of contract SEC. 12. When the owner of the land shall have failed to perform Part perform. his part of the contract, and by reason thereof the other party shall, without his fault, have been prevented from completely performing his part, he shall be entitled to a reasonable compensation for as much thereof as he has performed, in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly. premises order SEC. 13. If the lien shall be established in favor of any of the cred- When sale of itors whose claims are presented, whether the petitioning creditor or ed. any other, the court shall order a sale of the premises to be made by the sheriff or any master in chancery of the same county. SEC. 14. If any part of the premises can be separated from the residue When part may and sold, without damage to the whole, and if the value thereof shall be sold. be sufficient to satisfy all the claims proved in the case, the court may order a sale of that part, if it shall appear to be most for the interest of all the parties concerned. purchas.. SEC. 15. The officer who makes the sale shall give notice of the Notice of sale time and place appointed therefor in the manner prescribed in rela- and certificate of tion to the sale of real estate on executions, unless the court shall order other or different notice to be given, and such officer shall give to the purchaser a certificate of the sale, in like manner as certificates are required to be given on a sale upon execution, and with the same effect. SEC. 16. All lands sold under such order of the court, may be re- Redemption of and upon the same terms as are provided in lands sold. deemed in like manner, the case of a sale of real estate on execution. and how made. SEC. 17. If the claims against the estate are all ascertained at the Distribution of time of ordering the sale, the court may at the same time, order the proceeds, when officer to pay over and distribute the proceeds of the sale, after deducting all lawful charges and expenses, to and among the several creditors, to the amount of their respective claims, if there is sufficient therefor; and if there is not sufficient, then to divide and distribute the same among the creditors in proportion to the amount due to cach of them. SEC. 18. If the claims shall not all have been ascertained when the . TITLE XXIV. CHAPTER 126. How surplus dis. posed of. When and how far, attaching creditor to be preferred. Ib. Case of subsequent attachment. Case of an intervening attachment. Rights of attaching creditors and contractors among themselves. Debtor having a life estate, &c. Lien may be enforced against perly distributed at once, the court may make two or more successive orders of distribution, as the circumstances may require. SEC. 19. If there be any surplus of the proceeds of the sale, after making all the payments before mentioned, it shall be forthwith paid over to the owner of the land; but such surplus shall be liable to be attached or taken in execution, in like manner as if it proceeded from a sale made on an execution. SEC. 20. If the land to which any such contract relates, shall be under attachment at the time of recording the contract, the attaching creditor shall be preferred, to the extent of the value of the land and buildings, as they may be when the contract shall be recorded, and the court shall ascertain, by a jury or otherwise, as the case may require, what portion of the proceeds of the sale shall be held subject to the attachment, as derived from the value of the premises when the contract was recorded. SEC. 21. If the attaching creditor in such case, shall recover in his suit, he shall be entitled to receive on his execution the said proportion of the proceeds that are held subject to his attachment, or as much thereof as may be necessary to satisfy his execution, and the residue, if any, of the proceeds of the sale, shall be applied in the same manner as if there had been no such attachment. SEC. 22. If the land to which the contract relates shall be attached after the recording of the contract, the proceeds shall be applied, after discharging all prior liens and claims, so far as shall be necessary, or so far as the same will extend, to satisfy the execution of such attaching creditor. SEC. 23. If an attachment is made after the recording of such contract, and if, after the attachment, another such contract shall be recorded, the creditor in the latter contract shall be entitled to be paid only out of the residue of the proceeds, if any, remaining after satisfying the attaching creditor, and also paying all that is due on the contracts that were recorded before the attachment. SEC. 24. When there are several attaching creditors, they shall, as between themselves, be entitled to be paid according to the order of their respective attachments, but when several creditors who are entitled to the lien provided for in this chapter, have all equal rights as between themselves, and the fund shall be insufficient to pay the whole, they shall share it equally in proportion to their respective claims. SEC. 25. If the person who procures the work to be done, has an estate for life only, or any other estate less than a fee simple, in the land on which the work is done, or if the land, at the time of recording the contract is mortgaged, or under any other incumbrance, the person who procures the work to be done shall nevertheless be considered as the owner, for the purposes of this chapter, to the extent of his right and interest in the land; and the lien before provided for shall bind his whole estate and interest therein, in like manner as a mortgage would have done, and the creditor may cause the right of redemption, or whatever other estate or interest such person had in the land, to be sold and applied to the discharge of his claim, according to the provisions of this chapter. SEC. 26. If the person indebted in any such contract shall die, or heirs and assigns. shall convey away his estate, before the commencement of suit on the contract, the suit may be prosecuted against his heirs, or whoever |