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PART III. warrant to be published.
lished once in each week for four successive weeks in some newspaper published in the county in which such vessel may then be, or, if no newspaper be so published in such county, then in the nearest county in which a newspaper shall be so published, setting forth that such warrant has been issued, the amount of the claim specified therein, the day when such warrant was issued, and that such vessel will be sold for the payment of the claims against her, unless the master, owner or consignee thereof, or some person interested therein, appear and discharge such warrant according to law, within thirty days from the first publication of such notice.
Application $10. The owner, consignee, agent or commander of any to discharge war- vessel seized by virtue of any warrant issued pursuant to the provisions of this title, or any person interested in such vessel, may at any time before such vessel be sold, as hereinafter. provided, apply in person or by attorney to the officer who Issued such warrant, on one day's notice, to the said attaching creditor or his attorney, for an order to discharge the same. Said notice shall specify the names, places of residence and places of business of the proposed sureties.
S 11. Such person shall execute and deliver to the officer to whom such application is made, a bond to the creditors prosecuting such warrant, in a penalty at least double the amount specified in the warrant, conditioned that the obligors therein will pay the amount of any and all claims and demands which shall be established to be due to the person or persons in whose behalf such warrant was issued, and to have been a subsisting lien upon such vessel pursuant to the provisions of this act, at the time of exhibiting the same. In all such cases the attaching creditors shall have the right to examine the sureties as to their sufficiency, at such time and place as shall be fixed by the judge to whom application is made.
26 W., 505; 19 W., 527.
When warrant to be
$12. Upon such bond being executed and delivered to discharged. such attaching creditor or his attorney, and the taxed fees of the sheriff paid, the said officer shall thereupon grant his order discharging the warrant that may have been issued by him in favor of such creditor, and no further proceedings against the said vessel so seized shall be had under the provisions of this title, founded upon any demand secured by such bond. Such bond may be prosecuted in any court having jurisdiction thereof at any time within three months after such delivery, but not afterwards.
Action in bond.
S 13. If in any action brought upon such bond it be found that any sum be due the plaintiff, which was a subsisting lien upon such ship or vessel at the time of exhibiting the same as herein provided, judgment shall be rendered that the plaintiff recover the same with the costs and allowances of the action and the costs of the attachment, as herein provided, and he have execution therefor. But if in such action
it be found that no subsisting lien existed in favor of the plaintiff at the time of exhibiting his claim, then judgment shall be rendered against such plaintiff for the costs and allowances of such action and the costs of the attachment, as herein provided, including the amount of the sheriff's fees due and paid on releasing such vessel from the warrant.
S14. The costs of the attachment shall be in addition to Costs on the disbursements; for filing specification of a lien, two dollars; for exhibiting a lien and procuring a warrant therefor, when the amount of the lien is under fifty dollars, ten dollars; when the amount of the lien exceeds fifty dollars and is under two hundred and fifty dollars, twenty dollars; when the amount of the lien exceeds two hundred and fifty dollars and is under one thousand dollars, thirty dollars; and when the amount of the lien exceeds one thousand dollars, fifty dollars; for attending to the discharge of any warrant upon a bond, ten dollars. The sheriff shall be entitled in proceedings under Sheriff's this act to the following fees and expenses: For serving warrant, one dollar; for returning the same, one dollar; for the expenses of keeping such vessel in custody, the necessary sums paid by him therefor, not exceeding, however, the sum of two dollars and fifty cents for each day the vessel shall have been held by him in custody. Such sheriff shall not be entitled to receive any other or greater sums than those above specified, for any service rendered by him in any proceeding under this act, nor shall he be allowed expenses of custody upon more than one warrant at the same time. All costs, disbursements and fees shall be verified by affidavit and adjusted by the officer who issued the warrant.
$15. If the creditor who shall have exhibited his claim shall When pronot have been satisfied, and if such vessel shall not have been perty to be discharged within thirty days after the first publication of the notice required by the ninth section of this act, upon due proof of the publication of such notice, the officer who issued such warrant shall issue his order to the sheriff holding the vessel under such warrant, directing such sheriff to proceed and sell the vessel so seized by him, her tackle, apparel and furniture, and such order shall state the amount deemed necessary to be raised to satisfy all unsatisfied liens which have been exhibited against such vessel. Upon proof of personal service of the notice required by the ninth section of this act, and of notice of the application for sale upon the owners of the vessel, and upon all other unpaid creditors who have filed specifications of their liens pursuant to the provisions of this act, such order of sale may in the discretion of the officer be issued at any time after the seizure of such vessel.
S16. Within ten days after the service of such order the Notice of sheriff shall, unless such order be sooner vacated, proceed to sale. sell the vessel so seized by him, her tackle, apparel and furniture, 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.
S17. 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 vessel when duly taxed, shall be retained by such sheriff in his hands, to be distributed and paid as hereinafter directed.
Notice of distribution
Sis. At the time of issuing any such order of sale, the of proceeds. Officer granting the same shall order a notice to be published
in the same newspaper in which the notice of seizure is required hereby to be published once a week for three weeks, requiring all persons who have any liens upon such vessel by virtue of the provisions of this act, and the master, owner, agent or consignee and all other persons interested in such vessel to appear before him at a day to be therein specified, not less than thirty 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. The officer may in his discretion direct such distribution to be made before a referee to be appointed by him on notice.
Proceeds of sale.
Liens against proceeds
Costs of distribution
Who may contest claims.
$ 19. Such proceeds of any sale under the provisions of this act shall, until distributed as herein provided, stand in place of the vessel, and until such distribution any person entitled under this act to enforce a lien against such vessel may enforce the same against such proceeds, in the same manner as is herein provided for enforcing a lien against the vessel herself, and with like effect. Upon the distribution of such proceeds, the various claims exhibited, which are found to be subsisting liens upon such vessel, or the proceeds thereof according to the provisions of this act, shall, with their respective costs, expenses and allowances, be ordered to be paid out of such proceeds in the order of the delivery of the respective warrants to the sheriff. The costs, disbursements and allowances upon such distribution shall be the same as those allowed in civil actions upon a trial.
$ 20. At any time before the final distribution of such proceeds the master, owner, agent, consignee or any person having any interest whatever in such proceeds may contest any claim which shall have been exhibited against such vessel or the proceeds thereof.
Statement to be filed
S21. In case of such contest the party making objection with officer, to any such claims shall file with the officer a written statement or answer designating the claims he desires to contest, and controverting such of the allegations of the petition exhibiting such claim as he may be able to controvert, and likewise setting up any other matter of defence thereto. Such statement or answer shall be verified by the party presenting the same to the effect that the same is true to the best of his knowledge or belief. A copy thereof shall within
five days from the filing thereof be served upon the person Copy whose claim it is intended to contest or his attorney, other- served. wise it shall be deemed abandoned.
$ 22. If such answer do not contain matter of defence to When statesuch claim, it may be stricken out on motion of any person en out. who has exhibited any claim against said vessel or the proceeds thereof.
S 23. The issue between such contestants shall be tried be- Trial of fore a judge in like manner as other issues which are autho- thereon. rized by law to be tried before a judge, and at some early day to be fixed by the officer who issued the warrant, or the same may be referred by such officer to some competent referee, to hear and determine the same in like manner as in civil actions.
$24. Either party may have the same right to except to Appeal. and appeal from the report of such referee or the decision of such judge as in civil actions, and on such appeal the finding of such referee or court, both of law and of fact, shall be examined and may be reversed or modified, or a new trial may be ordered. Judgment for costs shall be rendered in favor of the successful party as in personal actions, and the successful party shall be entitled to recover the costs and allowances provided for in the Code of Procedure in civil actions.
$ 25. When the amount of all the claims which shall have Distribubeen exhibited, and which are found to have been subsisting lated. liens upon such vessel at the time of exhibiting the same, shall have been finally determined, the said proceeds shall be distributed by the court as provided in section eighteen of this act, on motion of any person interested therein or other wise. Any uncontested claims entitled by this act to be paid out of such proceeds prior to the claims which may be contested, shall, on motion of the parties interested, be paid in the order of their respective priorities, notwithstanding such contest with costs; and if at any time it be made to appear that after payment of all prior uncontested claims and their respective costs, and after deducting an amount sufficient to pay all prior contested claims and costs, there will remain a surplus of such proceeds applicable to the payment of any subsequent uncontested claims. Such claims may, on notice to the owner or agent of the vessel, or other parties interested, be ordered to be paid out of such surplus, with costs.
$26. The proceeds of any sale of any vessel under the Proceeds provisions of this act shall be subject to the direction of the direction of court, and may at any time be invested by such court, accord- court. ing to the practice thereof.
$27. Whenever any person having a lien against any ship Lien may or vessel shall have filed specifications thereof as provided by this act, such lien may be assigned and transferred by an instrument in writing, duly acknowledged and filed in the same place where the original specifications of such liens were
Further provisions as to discharge of lien.
Discharge of lien.
Distribution of surplus.
filed; such assignment shall describe the debt intended to be transferred, and specify the date of the filing the specification thereof, and shall state to whom it is intended to transfer it. Such transfer, and the name of the person or persons to whom such lien has been transferred, shall be noted by the clerk opposite the original entry of such lien, and after the filing of such assignment and transfer, but not otherwise, the person to whom such lien has been transferred shall be entitled to enforce the same in like manner as the person who transferred the same could have done.
$28. Whenever any specifications of any lien upon any ship or vessel shall have been filed pursuant to the provisions of this act, and no warrant has been issued to enforce the same, any person owning or interested in such ship or vessel may apply to any justice of the supreme court for leave to discharge such lien upon giving bonds therefor. Such application shall be in writing, and shall set forth the amount of the lien claimed to be subsisting and the grounds of defence thereto; it shall also set forth the names of two persons, proposed sureties for such lien, with their respective residences and places of business, which sureties shall, if leave to bond be granted, justify on notice to the person having the lien before the officer granting such leave. Upon presenting such application, with proof that a copy thereof, with at least five days' notice of the time and place of presenting the same, has been served upon the person having such lien, such officer may, if no just cause be shown in opposition thereto, grant leave to bond the said claim.
$29. When such leave be given, and upon the execution and delivery to the person having such lien of the bond prescribed in section seven of this act approved by the officer, such officer shall direct that the said lien be marked by the clerk as discharged, and the same shall cease to be a lien upon such vessel.
S 30. If after payment of all claims which have been exhibited and been found to be payable out of the proceeds of the sale of any vessel under this act, a surplus thereof remain, such surplus may be distributed by the court to the persons entitled thereto, but such distribution shall not be made until a notice shall have been published specifying the amount of such surplus, proceeds, the names of the persons applying therefor, together with the name of the ship or vessel from which the. same arose, and the date of the sale of such vessel. Such notice shall be published in the same manner and for the same time as prescribed in section nine of this act.
Absence or $ 31. Whenever any proceeding under this act shall have inability of been commenced before any judge, the same and every part
thereof may, in the absence or inability of such judge, or by his order to that effect, be continued before any other judge of the same court.