Proceedings to Enforce Liens on Vessels.

would appear that the object of this provision is to enable an owner or other party in interest to attack the lien of a person who has not taken steps to secure a warrant of attachment.

Section 13- Trial of Issues and Appeal.

[8 3431, Code Civ. Pro.]—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 judgment may be rendered therefor.

L. 1862, ch. 482, S$ 23, 24, without material change.

Section 14- Distribution of Proceeds.

[$ 3432, Code Civ. Pro.] - 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 vessel or proceeds, with all costs, expenses and allowances, in the order of the priority of filing the notices of such liens, as provided in article two of the lien law. Such costs, expenses and allowances shall be in the discretion of the justice, except as otherwise provided in this title.

L. 1862, ch. 482, § 19, without material change.

This section provides for the payment of the valid liens from the proceeds of the sale, after all contests are decided and liens and claims are determined. The priority of each lien is to be ascertained from the time of its filing as prescribed in section 32 of the Lien Law, ante, p. 224.

Distribution of Surplus.

Section 15-Payment of Uncontested Claims.

[ 3433, Code Civ. Pro.] - 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.

L. 1862, ch. 482, § 25, without material change.

This section is evidently intended to provide a means of payment of uncontested claims, when it occurs that contests have been instituted which will require much time to bring to a termination. In any such case it must appear that the fund is sufficient to dispose of all claims without affecting the rights of the lienors whose claims are contested.

Section 16- Distribution of Surplus.

[ 3434, Code Civ. Pro.]—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 title 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

Proceedings to Enforce Liens on Vessels.

the hearing will be held and the distribution of the surplus made.

L. 1862, ch. 482, §§ 26, 30. We have provided in this section that a hearing be had before the surplus can be distributed. Report of Statutory Revision Commission, 1897.

Section 17

Application for a Discharge of Warrant.

[$ 3435, Code Civ. Pro.]- 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 title, 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.

L. 1862, ch. 482, § 10, without material change.

For forms of notice and application, see Forms Nos. 46, 47.

The procedure provided for a discharge of the warrant of attachment contained in the former law has been re-enacted in this and the following sections without material change.

Section 18- Undertaking to Accompany Application for

Discharge.

[$ 3436, Code Civ. Pro.]- 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

Discharge of Warrant.

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 places as may be fixed by such justice.

L. 1862, ch. 482, § 11, without material change.

For form of undertaking, see Form No. 48.

The bond need not recite that it was taken before the officer who issued the warrant. In an action upon the bond the only questions are, what was the nature and amount of the claim alleged by the plaintiff and whether it was a subsisting lien. Franklin v. Pendleton, 3 Sandf. 572.

A bond given to discharge a vessel from attachment under Laws of 1862, chapter 482, is void, so far as the judgment against the vessel is based upon repairs, this being a demand on exclusive admiralty jurisdiction, and the statute being, so far as concerns these, unconstitutional. But so far as such bond covers a demand for building a vessel, it is valid and binding. Murphy v. Salem, 1 Hun, 140.

Irregularity in the issue of the attachment does not render void a bond given to discharge a vessel for the collection of claims given against the same. Delaney v. Brett, 1 Abb. Pr. (N. S.) 421.

If the undertaking offered does not conform to the statute it may be amended, and when amended will be valid from the time of its execution. Matter of Tilton, 19 Abb. Pr. 50.

[ 3437, Code Civ. Pro.]-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.

L. 1862, ch. 482, § 12, without material change.
For order, see Form No. 49.

Proceedings to Enforce Liens on Vessels.

Section 20 Action on Undertaking.

[$ 3438, Code Civ. Pro.] — 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.

L. 1862, ch. 482, §§ 12, 13, without material change.

For complaint, see Form No. 50.

The first sentence of this section is a re-enactment of the last sentence of section 12 of chapter 482 of the Laws of 1862; the remainder of the section is a re-enactment of section 13 of that act.

Upon the discharge of the vessel because of the giving of an undertaking, the action to enforce the lien becomes an action in personam against the owner and the sureties on the bond. Denning v. Smith, 2 Wend. 303.

If the bond is given to several attaching creditors, they may sue jointly, or each may sue separately in respect to his own demand, but the suit must be brought in the name of all. Arnold v. Talmadge, 19 Wend. 527; but see Pearce v. Hitchcock, 2 N. Y. 388.

Upon a bond given to discharge a vessel from attachment, conditioned for payment of "all expenses, damages and charges which might be incurred by the owner or master, or to which they might be subjected, for unloading said goods from such vessel, and for all necessary detention of said vessel for said purposes," the sureties are not liable for the costs incurred in defending against a suit brought by consignees to recover goods taken in