sold, and has made no application for a warrant thereon, may present to and file with the justice or referee at the time and place specified in the notice of distribution of such proceeds, a verified statement of the facts and allegations required to be stated in the application for a warrant. And thereupon such lien shall be determined, with the same effect as if a warrant had been issued to enforce such lien.

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Derivation: Code Civil Procedure, § 3429.

96. Contested claims.

The master, owner, agent or consignee of the vessel, or any person having an interest in the proceeds before final distribution thereof, may contest any claim made against the vessel or its proceeds, by filing with such justice a written answer, verified as a pleading in a court of record, designating the claims contested and controverting any material allegation of the notice of lien, application for a warrant or statement of lien, and setting up any other matter in defense thereto. A copy of such answer shall be served within five days from such filing, upon the person whose claim is contested, or his attorney.

If the answer does not contain any matter of defense to the claim, it may be stricken out on motion of any person who has filed a notice of lien against the vessel.

Derivation: Code Civil Procedure, § 3430.

§ 97. Trial of issues and appeal.

The issues raised by any such answer shall be tried in the same manner as issues are tried in a court of record without a jury, before such justice at a time and place to be fixed by him, or they may be referred by such justice to a referee, to hear and determine. An appeal may be taken from the decision of such justice or referee as in a civil action in a court of record. On such appeal the decision upon the law and the facts, may be reversed, modified, or a new trial ordered. Costs, upon appeal, shall be allowed, as in the case of an appeal from a judgment in a court of record, and judg ment may be rendered therefor.

Derivation: Code Civil Procedure, § 3431.

98. Distribution of proceeds.

Upon the determination of all the claims presented, the justice or referee shall make an order of distribution of the proceeds. The order shall direct the payment of the claims found to be subsisting liens upon such vessels or proceeds, with all costs, expenses

and allowances, in the order of the priority of filing the notices of such liens, as provided in this article. Such costs, expenses and allowances shall be in the discretion of the justice, except as otherwise provided in this article.

Derivation: Code Civil Procedure, § 3432.

§ 99. Payment of uncontested claims.

Any uncontested claims, entitled to priority of payment over the claims which are contested, shall, on motion of the parties interested, be paid with costs, in the order of their respective priorities, without awaiting the determination of such contest. If at any time it is made to appear that after the payment of all prior uncontested claims and their respective costs, and after deducting an amount sufficient to pay all prior contested claims and costs, that there remains a surplus of proceeds applicable to the payment of any subsequent uncontested claims, such claims may on notice to all the parties interested be paid out of the surplus with costs, without awaiting the determination of such contest.

Derivation: Code Civil Procedure, § 3433.

§ 100. Distribution of surplus.

If upon payment of all claims established as liens against the vessel from the proceeds of its sale, a surplus remains, it may be distributed by the court to the persons entitled thereto, after a hearing and the publication of a notice by the applicants for the same time and in the same manner as the notice of seizure is required by this article to be published. Such notice shall specify the amount of the surplus proceeds, the names of the persons applying therefor, the name of the vessel from the sale of which the same arose, the date of the sale and the time and place when the hearing will be held and the distribution of the surplus made. Derivation: Code Civil Procedure, § 3434.

§ 101. Application for a discharge of warrant.

The owner, consignee, agent or master of any vessel so seized, or any person interested therein, may at any time before the sale of the vessel under this article, apply in person or by attorney, to the justice issuing the warrant, on at least one day's notice to the lienor or his attorney, for an order discharging the same on giving an undertaking therefor. Such notice shall specify the names, places of residence and places of business of the proposed sureties upon such undertaking.

Derivation: Code Civil Procedure, § 3435.

§ 102. Undertaking to accompany application for discharge. The application shall be accompanied by an undertaking to the lienor executed by at least two sureties in a sum at least twice the amount specified in the warrant, to the effect that the person making the application for the discharge of the vessel will pay the amount of all claims and demands which shall be established to be due to the person in whose behalf the warrant was issued, and to have been a subsisting lien on the vessel at the time of its issue. The undertaking when found sufficient, must be approved by the justice to whom the application is made as to the sufficiency of the sureties, and the lienor may examine the sureties as to their sufficiency at such time and place as may be fixed by such justice.

Derivation: Code Civil Procedure, § 3436.

§ 103. Discharge of warrant.

When such undertaking shall have been executed, approved and delivered to the lienor and the taxed fees of the sheriff upon the seizure and detention of the vessel have been paid, the justice shall make an order discharging the warrant, and no further proceedings against the vessel seized shall be had under this article. founded upon any demand secured by such undertaking.

Derivation: Code Civil Procedure, § 3437.

§ 104. Action on undertaking.

The undertaking may be prosecuted by action in any court having jurisdiction thereof, at any time within three months after its delivery, but not afterward. If, in such action it is found that any sum is due the plaintiff which was a subsisting lien upon the vessel at the time the notice of lien was filed, the plaintiff shall have judgment for the recovery of the same with the costs and disbursements of the action and the costs of the proceedings for the seizing of the vessel and shall have execution therefor. If it is found in such action that no such lien existed, judgment shall be rendered against the plaintiff for the costs and disbursements of the action and the costs of the proceedings, including the amount paid the sheriff in the discharge of the vessel from the warrant. Derivation: Code Civil Procedure, § 3438.

§ 105. Costs of proceedings.

The costs of the proceedings in addition to the disbursements shall be: For filing notice of lien, two dollars. For applying for and procuring a warrant if the lien is fifty dollars or under, ten

dollars; if the lien exceeds fifty dollars and is not more than two hundred and fifty dollars, twenty dollars; if the lien exceeds two hundred and fifty dollars, and is not more than one thousand dollars, thirty dollars; if the lien exceeds one thousand dollars, forty dollars. For attending proceedings upon the discharge of the warrant on the execution of an undertaking, ten dollars.

The sheriff shall be entitled in any such proceedings to the following fees and expenses: For serving warrant, one dollar. For return of the same, one dollar. The necessary sums paid by him for the expense of keeping the vessel in custody, not exceeding two dollars and fifty cents for each day. The sheriff shall not receive any other or greater sums for any service rendered by him in any proceeding under this article, nor shall he be allowed expense of custody of the vessel upon more than one warrant at the same time. All costs, disbursements and fees shall be verified by affidavit and adjusted by the justices issuing the warrant.

Derivation: Code Civil Procedure, § 3439.

§ 106. Sheriff must return warrant.

A sheriff to whom a warrant may have been delivered pursuant to the provisions of this article, may be compelled by an order made by the justice issuing it, to return such warrant with his proceedings thereon and pay over moneys in his hands, and to take any necessary steps for the safety of the vessel, pursuant to any order for that purpose. Obedience to such order may be enforced by attachment against the sheriff on the application of any person interested therein.

Derivation: Code Civil Procedure, § 3440.

§ 107. Discharge of lien before issue of warrant.

When any notice of lien shall have been filed under this article and no warrant has been issued to enforce the same, any person interested in the vessel, may apply to any justice of the supreme court for leave to discharge the lien upon giving an undertaking therefor to the lienor. The application shall be in writing, and shall state the amount of the lien claimed and the grounds of the defense thereto, and the names of the persons proposed as sureties on such undertaking, with their respective residences and places of business. 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 lienor, such justice may, if no just cause be shown in opposition thereto, author

ize the execution of such undertaking, which shall be to the same effect as an undertaking required in this article upon the application to discharge a warrant, and an action may be brought thereon in like manner. At the time of the presentation of such application the sureties proposed in such undertaking shall justify before such justice. When such undertaking has been executed and approved by such justice and delivered to the lienor, the justice shall direct the clerk with whom the notice of lien is filed to mark the same as discharged, and it shall cease to be a lien upon such vessel.

Derivation: Code Civil Procedure, § 3441.