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by a writing to that effect, signed by them and filed with such officer.29
If the referees be not so selected by agreement, then the party making the objection is to nominate two disinterested persons, and the creditor or creditors, whose claims are contested, are also to nominate two indifferent persons; or if either of them refuse or neglect, the officer before whom the proceedings are pending, is required to name two indifferent persons for the party or parties so refusing or neglecting. 30
The names of the persons thus nominated, must be written on four distinct pieces of paper, as similar in all respects as may be, which are to be rolled up separately and put into a box; and from thence the officer is required to draw out three of them : and the persons whose names are so drawn, are to be the referees to determine the controversy.31
The officer before whom they are selected is required to certify such selection in writing, and to deliver a duplicate of the same, or of the written agreement of the parties appointing referees, to each of the parties. $2
Such certificate or agreement must be filed in the office of the clerk of the supreme court, or, if the 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 is directed by the officer, and a rule must thereon be entered by such clerk, in vacation or in term, appointing the persons so selected, referees to determine the controversy. It is declared that such referees shall have the same powers, Referees'
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. The report of the referees must be filed in the same office
report: where the rule for their appointment was entered, and is de
29 Ib. s. 7.27.
32 Ib. s. 30.
33 Ib. s. 34 Ib. s.
clared to be conclusive on the parties, if not vacated by the
court to which it was made.35 Exception to Either party has the same right to except to the report, as
in cases of reference, during the pendency of a suit, and the court is required to proceed thereon in the like manner; and
the court may, in its discretion, appomt new referees, and Costs, judg. direct a new hearing. Judgment for costs is rendered against
the failing party, and execution awarded thereon, as in other
ment, aud execution.
Hlearing of claimanis,
Distribution to claimants.] If none of the creditors' and distribu- claims are contested in the manner we have just seen, the
officer is required, on the day appointed in the notice of distribution, to hear the allegations and proofs of the parties, and to make distribution of the proceeds arising from the sale, after deducting the expenses of the proceedings, among
the creditors who have exhibited their claims in the manner we have mentioned.37
In cases where the claims have been contested, the officer before whom the proceedings were pending is required, upon the final report of the referees being confirmed, to proceed to make distribution of the proceeds of the sale of the vessel, her tackle, apparel, and furniture, after deducting the expenses of the proceedings before him, among the attaching creditors, according to the report.38
When a distribution is made by the officer, in either case, riif to pay
he is required to make an order on the sheriff having such proceeds in his hands, directing him to pay the same to the several attaching creditors entitled thereto, according to such
distribution, and the same must be paid accordingly; and all Residue to monies remaining in the hands of the sheriff, after such paybe paid to owner, &c. ment, and after deducting his commission, are required to be
paid to the owner, agent, consignee, or master of the vessel.39
Order to she
35 lb. s. 33.
33 Ib. 498 s. 35,
If the proceeds arising from the sale of any vessel, are not If proceeds sufficient, after deducting all legal charges, to satisfy all the top bei videa: liens against the vessel, exhibited as before mentioned, the oficer ordering the sale is required to 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 before mentioned, in a just and equal proportion, to the amount of such claims respectively.40
The sheriff is entitled to a commission of five per cent. on Sheriff's all monies received by him, pursuant to the provisions of the statute. 41
The sheriff, to whom a warrant has been delivered, may be Sheriff hovo compelled, by the officer having jurisdiction over the proceed-return in ings thereon, to return the inventory required to be taken by pay over prohim, 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. 42
Report of the proceedings and filing with the papers.) Papers and Every officer who issues any warrant, pursuant to the pravi- filed, sions of the statute, is required to 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 the 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 and when: order for distribution made by him.*
40 2 R. St. 499. s. 37. 41 lb, s. 38.
42 Ib. s. 42. 43 Ib, s. 39.
Report conclusive evidence.
It is declared, that such report, and a duly certified copy thereof by the clerk, shall be conclusive evidence, that the proceedings stated therein were had before such officer. 44
Correction of errors.] It is provided, that, upon such report being made, the court may correct any errors that shall appear to have been committed in the proceedings, and make such order as shall be just, and may remit the proceedings, to the officer who issued the warrant, or may proceed to do such acts and things as shall be necessary.45
Court to cor-
44 Ib. s. 40.
45 Ib. s. 41.
OF ATTACHMENTS AGAINST ABSCONDING, CONCEALED, AND NOY.
The revised statutes provide, that the real and personal Cases in property of a debtor, may be attached for the payment of his tachment debts, in the following cases: 1. Whenever such debtor, being an inhabitant of this state, shall secretly depart therefrom, with intent to defraud his creditors, or to avoid the service of civil process; or shall keep himself concealed therein, with the like intent: 2. Whenever any person, not being a resident of this state, shall be indebted on a contract, made within this state, or to a creditor residing within this state, although upon a contract made elsewhere.?
The proceedings upon attachments under these provisions, Course and result, if no steps are taken to prevent it, in the appointment proceedings. of trustees, who take possession of all the debtor's property, and collect his debts, and finally make distribution of the proceeds, after paying expenses and certain preferred debts among those who were his creditors at the time of issuing the first warrant of attachment. But the debtor, or others who are interested, may prevent the appointment of trustees, and have his
property discharged from the attachment, either by a determination of court after a hearing or trial, that he was, if proceeded against as a non-resident debtor, at the time of
1 2 R. St. 3. s. 1.