TITLE 8. sons, and the creditor or creditors whose claims are contested, shall also nominate two indifferent persons; or if either of them refuse or neglect, the officer before whom the proceedings are pending, shall name two indifferent persons for the party or parties so refusing or neglecting. How select ed. How certifi ed. Appointment filed, &c. $29. The names of the persons thus nominated, shall be written on four distinct pieces of paper, as similar in all respects as may be, which shall be rolled up separately and put into a box; and from thence the said officer shall draw out three of them; and the persons whose names are so drawn, shall be the referees to determine the controversy. $30. The officer before whom they shall be selected, shall certify such selection in writing, and deliver a duplicate of the same, or of the written agreement of the parties appointing referees, to each of the parties. $31. Such certificate or agreement shall be filed in the office of where to be the clerk of the supreme court, or, if such 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 shall be directed by such officer; and a rule shall thereupon be entered by such clerk, in vacation or in term, appointing the persons so selected, referees to determine such controversy. Powers, &c. of referees. Filing their report, &c. Exceptions to report, &c. Distribution &c. $32. Such referees shall have the same 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. $ 33. The report of the referees shall be filed in the same office where the rule for their appointment was entered, and shall be conclusive on the parties, if not vacated by the court to which it was made. $34. Either party shall have the same right to except to such report, as in cases of reference during the pendency of a suit, and the court shall proceed thereon in the like manner; and may, in its discretion, appoint new referees, and direct a new hearing. Judgment for costs shall be rendered against the failing party, and execution shall be awarded thereon, as in other cases. $35. Upon the final report of such referees being confirmed, the after report, officer before whom the proceedings were pending, shall proceed to make distribution of the proceeds of the sale of such vessel, her tackle, apparel and furniture, after deducting the expenses of the proceedings before him, among the attaching creditors according to such report. How enfor $36. When a distribution shall be made by such officer, pursuant ced; surplus to either of the foregoing provisions, he shall make an order on the sheriff having such proceeds in his hands, directing him to pay the monies. same to the several attaching creditors entitled thereto, according to TITLE 8. such distribution, and the same shall be paid accordingly; and all monies remaining in the hands of such sheriff, after such payment, and after deducting his commission, shall be paid to the owner, agent, consignee or master of such vessel. portionate to be made. $37. If the proceeds arising from the sale of any vessel, shall not when pro be sufficient, after deducting all legal charges, to satisfy all the liens distribution against such vessel, exhibited as herein provided, the officer ordering such sale, shall 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 herein provided, in a just and equal proportion to the amounts of such claims respectively. commissions. $38. Every sheriff shall be entitled to a commission of five per Sheriff's cent. on all monies received by him, pursuant to the provisions of this 'Title. to be filed. $39. Every officer who shall issue any warrant, pursuant to the Proceedings foregoing provisions, shall 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 such 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 order for distribution made by him. evidence. $40. Such report, and a duly certified copy thereof by the clerk, How far shall be conclusive evidence, that the proceedings stated therein were had before such officer. S41. Upon such report being made, the court may correct any er- Correcting rors that shall appear to have been committed in the proceedings, and errors, &c. make such order as shall be just, and may remit the proceedings, to the officer who issued the warrant, or the court may proceed to do such acts and things as shall be necessary. return by S42. Every sheriff to whom a warrant may have been delivered, Compelling may be compelled, by the officer having jurisdiction over the proceed- sheriff, &c. ings thereon, to return the inventory required to be taken by him, 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. Application of this title, as to certain S43. No proceedings under this Title to enforce the liens authorised by the provisions thereof, shall be had against any vessel which shall have been seized by virtue of process issuing from any court of vessels. the United States having admiralty jurisdiction, while such vessel is actually held under such seizure; nor against any vessel which shall TITLE 9. have been sold by order of such court, except for debts contracted after such sale; but nothing in this section contained shall be construed to impair the validity of any liens created by this Title, the payment of which shall be decreed in any court of the United States. Distress after ed. TITLE IX. OF PROCEEDINGS FOR THE RECOVERY OF RENT AND OF DEMISED ART. 1.-Of distress for rent. ART. 2.—of the recovery of possession of demised premises for non-payment of rent, by ejectment. ARTICLE FIRST. Of Distress for Rent. SEC. 1. Right to distrain in certain cases, after tenancy ended. 4. Bond of certain officers in New-York, respecting distresses. 7. Penalty for violating two last sections. 8. Amount of rent due to be sworn to, &c. before distress. 9. Officers when and where to file warrant and affidavit; penalty. 11. Articles distrained how secured, &c. 12. Cattle feeding on highways, &c. may be distrained. 13. Certain articles not to be distrained while others can be found. 14. Certain property not to be distrained; liability of officer. 15. When goods removed may be seized. 16. To be done within six months; goods sold, &c. not liable. 17. Penalty on tenant and others removing goods to avoid rent. 19. Liability for making unreasonable distress. 20. Beasts distrained, where to be kept; rights of owner. 21. Property distrained may be kept on premises, &c. 22. Notice to be given tenant when removed to any other place. 23. Penalty for rescue or pound-breach. 24. Notice of distress, amount due and inventory, to be given to tenant. 25. When and how goods distrained to be appraised. 26. Sale of goods; notice thereof; application of proceeds. 27. Penalty for distraining when no rent is due. 28. Remedy for irregularities in distraining. 29. How defendant may plead in certain actions of trespass. $1. Within six months after the determination of any lease for tenancy end- life, or for years, or of any tenancy at will, any person having rent due upon such demise in arrear, may distrain for such arrears, either upon any goods remaining on the demised premises, or upon any goods that may have been removed, in the same manner, within the same time, and under the same provisions and restrictions, as if such lease or tenancy had not ended.56 Not allowed in certain cases. $ 2. No distress shall be made for any rent for which a judgment shall have been recovered in a personal action. (56) 1R. L. p. 438, § 17. ART. 1. S3. Every distress for rent shall be made by the sheriff of the county, or one of his deputies, or by a constable or marshal of the What officers city or town where the goods are, who shall conduct the proceedings to execute throughout. d:stress. cers in New S 4. The official bond of every constable and marshal of the city Bond of offiand county of New-York, shall contain a condition for the faithful York. performance of his duty in making any distress, and for the payment of any rent collected by him; and any person aggrieved, shall have the like remedy on such bond, as in case of the non-payment of money collected by any such constable or marshal on execution. where to be $5. No distress shall be driven out of the town where it shall be Distresses taken, except to a pound within the same county, not above three driven. miles distant from the place where such distress shall have been taken.57 S 6. All beasts, or goods or chattels taken as a distress at one time, To be kept in shall be kept, as near as may be, in the same place. 58 one place. $7. Whoever shall violate either of the provisions contained in Penalty. the two last sections, shall, for every offence, forfeit to the party aggrieved, fifty dollars, besides being answerable to such party for all damages sustained thereby; which damages may be recovered in the same action, or in another suit, at the election of such party. amount of S8. No officer shall proceed to make distress for rent, unless there Oath to be annexed to, or delivered with, the warrant of distress, an affidavit rent due. made by the landlord for whose benefit the distress is to be made, or by his agent or receiver, before some officer authorised to administer oaths, specifying the amount of rent due, and the time for which it accrued. affidavit to be $9. Within ten days after any goods that shall have been distrain- Warrant and ed for rent, by any officer, shall be sold, or after such goods shall have fled. been replevied, such officer shall file in the office of the town clerk, the original warrant of distress, with the original affidavit of the landlord, his agent or receiver, delivered with such warrant. In the city and county of New-York, in the city and county of Albany, in the cities of Troy, Hudson and Schenectady, such warrant and affidavit shall be filed in the office of the clerk of the county. Any officer violating this provision, shall forfeit fifty dollars to the person whose property shall have been distrained. $10. The following articles shall be liable to be distrained for Articles lia rent: 1. Goods, wares, merchandize, utensils, furniture, cattle, provisions, and all other personal chattels, except such as are by law exempt from sale under executions in civil cases, and such as are by law exempt from distress: (57) 1 R. L. p. 434, § 2; Ib. p. 93, § 7. (58) Ib. p. 93, § 7. ble to distress. TITLE 9. 2. Things annexed, for the purpose of trade or manufacture, to the freehold, or to any building, and not fixed into the wall of such building, so as to be essential to its support : Securing articles distrained. Cattle on highways. Beasts of the 3. Wheat, corn, or any kind of grain, grass, hops, roots or other produce, whether growing upon the demised premises, or whether the same be in cocks, or sheaves, or loose, or in the straw, in any barn or granary, or elsewhere upon the land charged with the rent.59 $ 11. All goods or chattels that may be lawfully distrained, may be cut, gathered, secured, locked up and detained, in such place on the premises, as may be most convenient, or in such other place as may be provided by the landlord, and approved by the officer making the distress; but the articles enumerated in the second subdivision of the last section, and the produce of the soil in the ground, shall not be removed, until after a sale thereof as herein provided. 59 $ 12. It shall be lawful for the landlord to distrain any cattle or stock of the tenant, feeding or pasturing upon any common, in any way belonging or appurtenant to the premises charged with rent.59 $ 13. Beasts of the plough, sheep, and the implements of a meplough, &c. chanic's trade, shall not be distrained for rent, until other chattels sufficient for the demand can not be found.60 Certain preperty not to $ 14. Personal property deposited with a tenant, with the consent be distrained. of the landlord, or hired by such tenant, or lent to him, with the like consent, shall not be distrained for any rent due to such landlord; nor shall any property belonging to any other person than the tenant, which shall have accidentally strayed on the demised premises, or which shall be deposited with a tavern-keeper, or with the keeper of any ware-house, in the usual course of their business, or deposited with a mechanic or other person, for the purpose of being repaired or being manufactured, be subject to distress or sale for rent; but the officer making the distress, shall not be liable for seizing or selling property not belonging to the tenant, unless before such taking or sale, notice of the claim of a third person, be given to such officer. Offieer when liable. Seizing goods removed. $ 15. Any goods or chattels of the tenant, which shall be carried off from any demised premises, either before or after any rent shall become due, such rent being left unpaid, may be seized as a distress for any rent due at the time of such seizure, wheresoever they shall be found, within thirty days after their removal, if any rent be due at the time of such removal, or shall become due within the said thirty days and if no rent be due or become due, within that time, then such seizure may be made at any time within thirty days after the rent shall become due: and the goods so seized, shall be sold, as if they had been distrained upon the demised premises. 61 (59) 1 R. L. p. 435, § 6. (60) Ib. § 3. (61) Ib. § 13, and Laws of 1820, p. 179, § 7. |