TITLE 8.

$14. Upon such bond being executed and delivered, the said officer shall thereupon grant his order, discharging the warrant that may Order of dis- have been issued by him; and no further proceedings against the vessel so seized, shall be had under the provisions of this Title, founded upon any demands included in such bond.

charge; its effect.

S 15. Every such bond shall be held for the common benefit of all the attaching creditors, and may be prosecuted by any of them jointly, or by any one of them separately, in respect to his separate demand.

S16. In the suit upon such bond, the attaching creditors respectively shall state in their declaration, their respective demands, alleging the work to have been done, or the materials or articles furnished, or the expenses incurred, at the request of the master, owner, agent or consignee of such vessel, as the case really was, averring that the claim therefor was a subsisting lien on such vessel at the time of the exhibition thereof as herein before provided; and shall assign as a breach of the condition of such bond, the non-payment of the claim of such creditor.

$ 17. To such declaration the defendants may plead as in other actions of debt on bond, and may plead to such assignment of breaches; 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.

$ 18. If it shall be found by the return to a writ of inquiry in such suit, or by the verdict of the jury impannelled to try any issue joined therein, that the sum of fifty dollars or upwards was due to any plaintiff in such suit, upon any claim or demand which, by the provisions, of this Title was a subsisting lien upon such vessel, at the time of the exhibition thereof as herein provided, judgment shall be rendered that such plaintiff have execution for the amount of such claim.

$ 19. But if it shall so be found that nothing, or a less sum than fifty dollars, was due to any plaintiff in such suit as specified in the last section, judgment shall be entered against such plaintiff, that he take nothing by his writ; and the court shall award to the defendants the costs incurred by them in resisting the claim of such plaintiff.

$20. If the creditors who shall have exhibited their claims as herein provided, shall not have been satisfied, and if such warrant shall not have been discharged as before provided, within the time 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 herein required, shall issue his order to the sheriff who seized the vessel under such warrant, directing such sheriff to proceed and sell the vessel so seized, her tackle, apparel and

furniture, and shall state in such order the amount necessary to be TITLE 8. raised to satisfy such claims and expenses.

fied.

$ 21. If it shall appear to such officer, that the claims exhibited When modibefore him, and the expenses of the proceedings, can be satisfied by a sale of the tackle, apparel and furniture of such vessel, or of some part thereof, without selling such vessel, he shall modify his order accordingly.

riff.

$ 22. Within twenty days after the service of such order, the she- Sale by sheriff shall proceed and sell the 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, upon 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 upon execution.

proceeds of

sale.

$ 23. The sheriff shall return to the officer granting such order, Return by his proceedings under the same; and the proceeds of such sale, after him to hold deducting his fees and expenses in seizing, preserving, watching and selling such vessel, shall be retained by such sheriff in his hands, to be distributed and paid as herein after directed.

owner, &c.

$ 24. At the time of issuing any such order of sale, the officer Notice to granting the same, shall order a notice to be published in the same newspaper in which the notice of seizure was printed, as herein before directed, once in each week for three weeks, requiring all persons who have exhibited any claims against such vessel, and the owner, agent, consignee, master, and all other persons interested in such vessel, to appear before him at a day therein to be specified, not less than thirty days and not more than forty days from the first publication of such notice, to attend a distribution of the proceeds arising from the sale of such vessel, her tackle, apparel and furniture.

of proceeds.

$25. On the day appointed in such notice, the officer shall hear Distribution 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 of some of them, be contested by the owner, agent, consignee or master of such vessel, or by some other of such creditors.

jections to

$ 26. In case of such contest, the party making the objection, shall written obfile with the officer a written statement thereof, and his desire that the claims, &c. claims so objected to, be referred to referees, to examine and report thereon.

agree on

$27. The party making such objection, and the creditors whose Parties may claims are contested, may agree upon three indifferent persons, by a referees. writing to that effect, signed by them and filed with such officer. $28. If such referees be not so selected by agreement, then the Otherwise, to party making such objection, shall nominate two disinterested per

nominate.

TITLE 8. sons, and the creditor or creditors whose claims are contested, shall also nominate two indifferent persons; or if either of them refuse or neglect, the officer before whom the proceedings are pending, shall name two indifferent persons for the party or parties so refusing or neglecting.

How select

ed.

How certifi

ed.

Appointment

where to be

filed, &c.

Powers, &c. of referees.

Filing their

report, &c.

Exceptions to report, &c.

Distribution

&c.

$29. The names of the persons thus nominated, shall be written on four distinct pieces of paper, as similar in all respects as may be, which shall be rolled up separately and put into a box; and from thence the said officer shall draw out three of them; and the persons whose names are so drawn, shall be the referees to determine the controversy.

$30. The officer before whom they shall be selected, shall certify such selection in writing, and deliver a duplicate of the same, or of the written agreement of the parties appointing referees, to each of the parties.

$31. Such certificate or agreement shall be filed in the office of the clerk of the supreme court, or, if such vessel was seized within the city and county of New-York, with the clerk of the superior court of law therein, or with the clerk of the court of common pleas thereof, as shall be directed by such officer; and a rule shall thereupon be entered by such clerk, in vacation or in term, appointing the persons so selected, referees to determine such controversy.

$32. Such referees shall have the same powers, and be subject to the like duties and obligations, and shall receive the same compensation, as referees appointed by the supreme court, in personal actions depending therein.

$33. The report of the referees shall be filed in the same office where the rule for their appointment was entered, and shall be conclusive on the parties, if not vacated by the court to which it was made.

$34. Either party shall have the same right to except to such report, as in cases of reference during the pendency of a suit, and the court shall proceed thereon in the like manner; and may, in its discretion, appoint new referees, and direct a new hearing. Judgment for costs shall be rendered against the failing party, and execution shall be awarded thereon, as in other cases.

§ 35. Upon the final report of such referees being confirmed, the after report, officer before whom the proceedings were pending, shall proceed to make distribution of the proceeds of the sale of such vessel, her tackle, apparel and furniture, after deducting the expenses of the proceedings before him, among the attaching creditors according to such report.

How enfor

$36. When a distribution shall be made by such officer, pursuant ced, surplus to either of the foregoing provisions, he shall make an order on the sheriff having such proceeds in his hands, directing him to pay

monies.

the

same to the several attaching creditors entitled thereto, according to TITLE 8. such distribution, and the same shall be paid accordingly; and all monies remaining in the hands of such sheriff, after such payment, and after deducting his commission, shall be paid to the owner, agent, consignee or master of such vessel.

portionate

to be made.

$ 37. If the proceeds arising from the sale of any vessel, shall not when probe sufficient, after deducting all legal charges, to satisfy all the liens distribution against such vessel, exhibited as herein provided, the officer ordering such sale, shall order a fair and just distribution of such proceeds among the creditors, whose claims shall have been ascertained by him or by the report of referees as herein provided, in a just and equal proportion to the amounts of such claims respectively.

commissions.

$38. Every sheriff shall be entitled to a commission of five per Sheriff's cent. on all monies received by him, pursuant to the provisions of this Title.

to be filed.

$39. Every officer who shall issue any warrant, pursuant to the Proceedings foregoing provisions, shall cause the applications, affidavits and proofs presented to him by the attaching creditors, and copies of all warrants issued, and all orders made by him, with a bill of the fees and expenses allowed by him, and a report of all the proceedings had before or done by him, to be filed in the office of a clerk of the supreme court, or if such vessel was seized in the city and county of New-York, with the clerk of the superior court of law, or with the clerk of the court of common pleas thereof, within thirty days after the order for distribution made by him.

evidence.

$40. Such report, and a duly certified copy thereof by the clerk, How far shall be conclusive evidence, that the proceedings stated therein were had before such officer.

$41. Upon such report being made, the court may correct any er- Correcting rors that shall appear to have been committed in the proceedings, and errors, &c. make such order as shall be just, and may remit the proceedings, to the officer who issued the warrant, or the court may proceed to do such acts and things as shall be necessary.

$42. Every sheriff to whom a warrant may have been delivered, Compelling

return by

may be compelled, by the officer having jurisdiction over the proceed- sheriff, &c. ings thereon, to return the inventory required to be taken by him, and to pay over monies in his hands, pursuant to any order for that purpose, by an order of such officer, and by process of attachment for disobedience thereof, on the application of any creditor.

of this title,

vessels.

$43. No proceedings under this Title to enforce the liens author- Application ised by the provisions thereof, shall be had against any vessel which as to certain shall have been seized by virtue of process issuing from any court of the United States having admiralty jurisdiction, while such vessel is actually held under such seizure; nor against any vessel which shall

TITLE 9. have been sold by order of such court, except for debts contracted after such sale; but nothing in this section contained shall be construed to impair the validity of any liens created by this Title, the payment of which shall be decreed in any court of the United States.

TITLE IX.

OF PROCEEDINGS FOR THE RECOVERY OF RENT AND OF DEMISED
PREMISES.

ART. 1.-Of distress for rent.

ART. 2.— Of the recovery of possession of demised premises for non-payment of rent, by

ejectment.

ARTICLE FIRST.

Of Distress for Rent.

SEC. 1. Right to distrain in certain cases, after tenancy ended.
2. Distress not to be made for rent recovered by judgment.
3. Officers who are authorised to make distress.

4. Bond of certain officers in New-York, respecting distresses.
5. Distresses not to be driven out of town except to pound.
6. Beasts, &c. taken at one time, to be kept in one place.

7. Penalty for violating two last sections.

8. Amount of rent due to be sworn to, &c. before distress.

9. Officers when and where to file warrant and affidavit; penalty.
10. Articles liable to distress for rent enumerated.

11. Articles distrained how secured, &c.

12. Cattle feeding on highways, &c. may be distrained.

13. Certain articles not to be distrained while others can be found.

14. Certain property not to be distrained; liability of officer.

15. When goods removed may be seized.

16. To be done within six months; goods sold, &c. not liable.
17. Penalty on tenant and others removing goods to avoid rent.
18. Search warrant for goods removed, when to be granted.

19. Liability for making unreasonable distress.

20. Beasts distrained, where to be kept; rights of owner.

21. Property distrained may be kept on premises, &c.

22. Notice to be given tenant when removed to any other place.

23. Penalty for rescue or pound-breach.

24. Notice of distress, amount due and inventory, to be given to tenant.

25. When and how goods distrained to be appraised.

26. Sale of goods; notice thereof; application of proceeds.

27. Penalty for distraining when no rent is due.

28. Remedy for irregularities in distraining.

29. How defendant may plead in certain actions of trespass.

$1. Within six months after the determination of any lease for

life, or for years, or of any tenancy at will, any person having rent
due
upon such demise in arrear, may distrain for such arrears, either
upon any goods remaining on the demised premises, or upon any
goods that may have been removed, in the same manner, within the
same time, and under the same provisions and restrictions, as if such
lease or tenancy had not ended.56

$ 2. No distress shall be made for any rent for which a judgment shall have been recovered in a personal action.

(56) 1R. L. p. 438, § 17.