the rent in arrear; and the court are required thereupon, to award a writ of inquiry to the sheriff of the proper county, to ascertain the sum in arrear, at the time of such distress taken, and also the value of the property distrained; and upon the return of the inquisition taken by the sheriff, the defendant is entitled to judgment, to recover against the plaintiff the arrearages of rent, in case the property distrained amounts to that value; and in case it does not amount to such value, then so much as the property distrained does amount to; for which sum, he may have execution against the property, or the person of the plaintiff, as in other cases :84 2. If judgment has been given for the defendant, upon demurrer, he may make the like suggestion of the arrears of rent, if the same has not already been pleaded by him, and the court are required to award a writ of inquiry; upon which, the same proceedings are to be had to judgment and execution, as lastly above mentioned:85 3. If the plaintiff be nonsuited, after issue joined, or if the verdict be given against him, then the jurors, that are impanelled to try such issue, are required, at the prayer of the defendant, to inquire concerning the amount of the rent in arrear, and the value of the property distrained; and the defendant is thereupon entitled to judgment and execution for such arrearages, or so much thereof, as the property shall amount to, as above mentioned.86 not equal distress allowed. If the value of the property distrained, is not found to be If distress equal to the arrears of rent distrained for, the party to whom to rent, new such arrears were due, his executors, administrators, or assigns, may, from time to time, distrain again for the residue of such arrears.87 distress for If the property replevied are beasts or chattels, distrained In cases of from doing damage, the defendant, instead of taking judg- damage, dement for a return thereof, may, at his election, take judgment take judg fendant may 84 Ib. 85 Ib. VOL. II. 86 lb. 56. 78 return, or for to be assess ed as in cases of rent. ment for a to recover the damages sustained by him by the injury for the damages which such beasts or chattels were distrained, or so much thereof as the value of the beasts or chattels shall amount to; and the like proceedings are to be had to ascertain such damages and such value, and the like judgment and execution are to be had thereupon, as are provided in the section last referred to, respecting distresses for rent.88 Suit on plaintiff's bond. Notice of executing quiry. Notwithstanding the defendant may have elected to proceed under the provisions of either of the two last sections referred to, he is not precluded from resorting, as the assignee of the sheriff, to his remedy against the plaintiff and his sureties, upon the bond executed by them to the sheriff.89 When a writ of inquiry is executed in any of the abovewrit of in- mentioned cases of distress, the same notice of executing it must be given, if the party has appeared in person or by attorney, as in other cases of replevin, or in personal actions. If property has not been delivered, defendant has judgment for costs only. In action on plaintiff's rent or da than the dis ference to be If the property replevied in cases of distress, has not been delivered to the plaintiff, the defendant cannot proceed in the manner above described, if he recovers judgment, because, as in ordinary cases, he is only entitled to judgment for costs, including the fees of the sheriff and jury upon a claim of property, if one was interposed.91 Action on plaintiff's bond.] In any action prosecuted on bond, if the the bond given by the plaintiff in replevin, for the deliverance mage be less of any property distrained for rent, or for doing damage, the tress, the dif- defendant may show, in mitigation of the damages, the amount deducted of the plaintiff's claim in the action of replevin for such rent, or for such damage; and if such amount, with interest, be less than the value of the property replevied, a corresponding deduction is to be made from such value.92 from the re 'covery. 33 2 R. St. 532. s. 57. 90 2 R. St. 532. s. 59. 91 Ib. s. 60. 92 2 R. St. 533. s. 66. CHAPTER VII. OF PROCEEDINGS FOR THE COLLECTION OF DEMANDS AGAINST SHIPS AND VESSELS. a lien by the The proceedings of which we propose to treat in this chap- What debts ter may be instituted whenever a debt, amounting to fifty dol- statute. lars or upwards, has been contracted by the master, owner, agent, or consignee, of any ship or vessel, within this state, for either of the following purposes: 1. On account of any work done, or materials or articles furnished in this state, for, or towards the building, repairing, fitting, furnishing, or equipping such ship or vessel: 2. For such provisions and stores furnished within this state, as may be fit and proper for the use of such vessel, at the time when the same were furnished: 3. On account of the wharfage and the expenses of keeping such vessel in port, including the expense incurred in employing persons to watch her. And the statutes declare that such debt shall be a lien upon such ship or vessel, her tackle, apparel, and furniture; and shall be preferred to all other liens thereon, except mariners' wages.1 debt ceases Whenever the ship or vessel departs from the port at which When the she was, when the debt was contracted, to some other port to be a lien. within this state, the debt ceases to be a lien, at the expiration of twelve days after the day of her departure; and in all cases the lien ceases immediately after the vessel has left this state.2 Arrange ment of the subject. After a vessel has been attached under these provisions, the proceedings may be suspended, and the vessel discharged, upon any person interested in her, giving a bond with sureties for the payment of the demands exhibited, and which are subsisting liens upon her; and in such case, a suit and judgment upon the bond terminate the proceedings. But if no bond is given, the proceedings against the vessel continue until a sale of her, and a distribution of the proceeds. In considering these proceedings it will be most convenient to divide them as follows: 1. Those which precede the discharge or sale of the vessel; and also the proceedings on the bond: 2. The sale of the vessel and distribution of the proceeds. SECTION I. OF THE PROCEEDINGS UNTIL A DISCHARGE OR SALE OF THE VESSEL; AND ALSO OF THE PROCEEDINGS ON THE BOND. By whom and to whom to be made; Application for, and issuing of the warrant.] Any person application having due to him the sum of fifty dollars or upwards, upon any debt contracted for any of the purposes which have been mentioned, may make application to any officer authorised by law to perform the duties of a justice of the supreme court at chambers, in the county within which the ship or vessel then is, or in the city of New York to any justice of the superior court of law therein, for a warrant to enforce the lien of such debt, and to collect the amount thereof.s what it must specify. The application must be in writing, and must specify, 1. By whom the debt was contracted, and for what ship or vessel: 2. The items composing the debt: 3. It must be verified 32 R. St. 494. s. 3. by the affidavit of the creditor, or of the person making the application in his behalf, stating that the sum claimed in such account is justly due to the person in whose behalf the application is made, over and above all payments and discounts: And the facts and circumstances to establish the demand must also be verified by the affidavits of one or more disinterested witnesses.4 sued, &c. The officer to whom the application is made is required Warrant isthereupon to issue his warrant to the sheriff of the county, commanding him to attach, seize, and safely keep such ship or vessel, her tackle, apparel, and furniture, to answer all such liens as shall be established against her according to law; and to make return of his proceedings under such warrant to the officer issuing it, within ten days after such seizure.5 rant not to Whenever any such warrant has been issued, no other war- Second warrant is allowed to issue, against the same ship or vessel, unless issue: the first warrant be superseded. rant to be is vessels held, cess of U. S: And no proceedings under the statute, to enforce the liens and no warauthorised by its provisions, can be had against any vessel sued against which has been seized by virtue of process, issuing from any &c, by procourt of the United States, having admiralty jurisdiction, courts. while such vessel is actually held under such seizure; nor against any vessel which has been sold by order of such court, except for debts contracted after such sale; but it is declared, that nothing contained in this section of the statute, shall be construed, to impair the validity of any liens, created by it, the payment of which shall be decreed in any court of the United States." how execu turned. Service and return of the warrant.] The sheriff to whom Warrant the warrant is directed, and delivered, must forthwith execute ted and rethe same, and must keep the ship, or vessel, and other property seized by him, to be disposed of as is directed by the 4 Ib. s. 4. 5 Ib. s. 5. 6 Ib. s. 7. |