When notice to be pested up in (5054.) SEC. 9. If there shall be no person entitled to notice public places. according to the provisions of the preceding section, the person impounding the beasts shall, within forty-eight hours thereafter, cause to be posted up in three public places in the township, and in a public place in each of any two adjoining townships, if within four miles from the place where they were taken, a written notice, containing a description of the beasts, and a statement of the time, place and cause of impounding. When notice to be published in newspaper. Proceedings if owner dissatisfied with claim. Ibid. If sum not paid, beasts to be sold. (5055.) SEC. 10. In case notice shall be given by posting up the same, if no person shall appear to claim the beasts within seven days after the day of impounding, a like notice shall be published for three successive weeks, in some public newspaper, if any there shall be published within twenty miles of the place of impounding, the first publication to be within fifteen days after the day of impounding. (5056.) SEC. 11. If the owner or keeper of the beasts shall be dissatisfied with the claim of the person impounding them, he may have the amount for which he is liable ascertained and determined by two disinterested and discreet persons, to be appointed and sworn for that purpose by a Justice of the Peace; and the sum determined by them shall be received instead of the sum demanded by the person who impounded the beasts, and they shall thereupon be delivered to the owner or keeper thereof. (5057.) SEC. 12. If the sum for which the beasts are impounded and detained, shall not be paid within fourteen days after notice of the impounding shall have been given, as before directed, or after the last publication of such notice in a newspaper, and shall not have been determined as aforesaid, the person who impounded them shall apply to a Justice of the Peace, and obtain a warrant to two disinterested and discreet persons, to be appointed and sworn by the Justice; and the persons so appointed and sworn shall ascertain and determine the sum due from the owner or keeper of the beasts, for damages, costs and expenses for which they are impounded and detained, including a reasonable compensation for their own services. (5058.) SEC. 13. If the sum so found to be due shall not be forthwith paid, the person who impounded the beasts shall cause them to be sold by auction in the township where they are impounded, first advertising the sale by posting up a notice thereof in three public places in the same township, at least five days before such sale. disposed of. (5059.) SEC. 14. The proceeds of the sale, after paying all How proceeds the said damages, costs and expenses, with the charges for advertising and selling the beasts, shall be deposited in the Treasury of the Township, for the use of the owner of the beasts, in case he shall substantiate his claim thereto, within two years from the time of sale. or rescued, may (5060.) SEC. 15. If any beasts that shall have been lawfully Beasts escaped distrained or impounded, shall escape or be rescued, the pound be retaken. keeper or person who distrained them, may, at any time within seven days thereafter, retake such beasts, and hold and dispose thereof, as if no escape or rescue had taken place. ing beasts dis (5061.) SEC. 16. If any person shall rescue any beasts dis- Penalty for rescutrained or impounded for any cause, he shall be liable to an trained. action on the case, to be brought by any person injured, to pay all damages which such person shall have sustained thereby, and all the fees and charges which shall have been incurred before the rescue, and shall also forfeit a sum not less than five, nor more than twenty dollars. tress to be tried replevin. (5062.) SEC. 17. The defendant in any action brought for Legality of disrescuing beasts distrained or impounded, shall not be allowed only in action of to allege or give in evidence the insufficiency of the fences, or any other fact or circumstance to show that the distress or impounding was illegal; but if there is any ground of objection to the proceeding, of which he is entitled to avail himself, he may have the advantage thereof in an action of replevin, to be brought as provided in the following sections. REPLEVIN OF BEASTS DISTRAINED. Writ of replevin. (5063.) SEC. 18. Any person whose beasts are distrained or owner may have impounded, in order to recover any penalty or forfeiture sup- 3 Mich. Rep., 163. posed to have been incurred by their going at large, or to obtain satisfaction for any damages alleged to have been done. by them, may have a writ of replevin therefor out of the proper Court, and the same proceedings shall be had thereon as in other cases of replevin, except as hereinafter provided. (5064.) SEC. 19. Such writ shall not be executed in any case, Affidavit to be anunless the plaintiff in the action, or some person knowing the nexed to Writ facts, shall make and annex to the writ an affidavit stating therein that the beasts, describing them, have been distrained or impounded, and are detained by the defendant, and that the consequence of failure. plaintiff therein is the owner of such beasts, or that he has a lawful right to the possession thereof. Bond to be given; (5065.) SEC. 20. The writ shall be served, and the property shall be appraised, and before delivery thereof to the plaintiff, a bond shall be given in like manner, and with the same effect as in other cases of replevin; but such property shall not be removed by the officer until such bond shall be given; and if such bond be not given within the time limited for that purpose, the property shall be relinquished by the Sheriff, and such failure shall be deemed a discontinuance of the suit by the plaintiff. Judgment for defe idant, how to be rendered. Judgment for plaintiff (5066.) SEC. 21. If the beasts shall be replevied and delivered to the plaintiff, and judgment of non-suit or of discontinuance be rendered against the plaintiff, or if it appear on the trial that the beasts were lawfully distrained, the defendant shall have judgment for such sum as shall be due from the plaintiff, for the penalty or forfeiture, or for the damages for which the beasts were impounded, together with all the lawful fees, costs, charges and expenses incurred by reason of the distress, to be assessed as in other cases, and also his costs of the action of replevin. (5067.) SEC. 22. If the plaintiff shall recover judgment against the defendant by default, or if it shall appear upon the trial that the beasts were distrained without any sufficient or justifiable cause, the plaintiff shall recover his damages caused by the unlawful detention of such beasts, to be assessed as in other actions of replevin, together with his costs of suit. SECTION 5075. When notice to be published in newspaper, etc. 5076. Contesting claims. 5077. Trial of question by Jury. 5078. All claims presented to be determined. 5079. Part performance of contract. 5080 When sale of premises ordered. 5081. When part may be sold. 5082. Notice of sale and certificate of purchase. 5083. Redemption of Lands sold. 5084, 5085. Distribution of proceeds, when and how made. 5086. How surplus disposed of. 5087, 5088. When and how far attaching creditor 5089. Case of subsequent Attachment. 5092. Debtor having a Life Estate, etc. 5094. Suit may be prosecuted by represen- SECTION 5095. Suit commenced by one creditor may be 5097. Costs. 5098. Action at common Law not prevented. OF CERTAIN LIENS UPON PERSONAL PROPERTY. 5102, 5103 Lien of Mechanics, etc., on Personal 5107. Proceedings if Defendant cannot be found. 5109. Enforcing liens in other cases. 5110. Expense of keeping beasts, when to be an Chapter One Hundred and Twenty-Six of Revised Statutes of 1846. OF CERTAIN LIENS UPON REAL PROPERTY. erty for labor and tain cases. 2 Doug. Mich., (5068.) SECTION 1. Every person who shall, by contract with Lien on real prop the owner of any piece of land, furnish labor or materials for materials in cererecting or repairing any building, or the appurtenances of 1840, p. 40. any building, on such land, shall have a lien upon the whole 54. piece of land, not exceeding one quarter of a section, including such building, in the manner hereinafter provided, for the amount due to him for such labor or materials. 4 Selden, 383. tach useless con etc. (5069.) SEC. 2. Such lien shall not attach unless the contract Lien not to at is made in writing, and signed by the owner of the land, or tract in writing, by some person duly authorized by him, and acknowledged, and recorded in the office of the Register of Deeds of the County where the land lies. solved. (5070.) SEC. 3. The lien shall be dissolved at the expiration when lien disof six months after the time when the money due by the contract, or the last instalment thereof, shall become due and payable, unless proceedings for enforcing the lien shall have been commenced within the said six months. may petition for (5071.) SEC. 4. When any sum due by such contract shall when Creditor remain unpaid for the space of sixty days after the same is order to sell. payable, the creditor may, upon a petition to the Circuit or County Court for the county in which the land lies, obtain an Contents of petition. Order that owner appear and an swer. Notice of order and copy of peti order for the sale thereof, and for applying the proceeds to the discharge of his demand. (5072.) SEC. 5. The petition may be filed, either in term, or in vacation, and shall contain a brief statement of the contract on which it is founded, and of the amount due thereon, with a description of the premises which are subject to the lien, and all other material facts and circumstances, and shall pray that the premises may be sold, and the proceeds of the sale be applied to the discharge of the demand. (5073.) SEc. 6. Upon filing the petition, an order may be entered of course, that the owner of the land appear and answer such petition within twenty days after service of notice of such order, and a copy of the petition upon such owner. (5074.) SEC. 7. Notice of such order, and a copy of the tion to be served. petition, shall be personally served upon such owner, if he resides within this State, and notice of the filing of the petition and entry of such order, shall also be served upon all other creditors who shall have a similar lien upon the same lands. When notice to be published in (5075.) SEc. 8. If it shall satisfactorily appear to the Court newspaper, etc. that such owner resides out of this State, such Court shall make an order that notice of filing such petition be given to all persons interested, by publishing the same, together with the substance of the petition, in some public newspaper printed or circulating within the county, for six successive weeks. Contesting claims. Trial of questions by Jury. All claims presented to be determined. (5076.) SEC. 9. Every creditor having a lien of the kind before mentioned upon the same land, may appear and prove his claim, and the owner may appear and disprove the same, and each of said creditors shall have a right to contest the claim of every other creditor; and the Court shall hear and determine the several claims in a summary manner, either with or without a jury, as the case may require. (5077.) Sec. 10. Every material question of fact shall be submitted to a jury, if required by either party, or if it shall be thought proper by the Court; and such trial shall be had upon a question stated, or upon an issue formed under the direction. of the Court, or otherwise, as the Court shall order. (5078.) SEC. 11. The Court shall examine all the claims that shall be presented, and shall ascertain and determine the amount due to each creditor who has a lien of the kind before mentioned, upon the estate in question, and every such claim that is due absolutely and without any condition, although not then payable, shall be allowed with a rebate of interest to the time when it would become payable. |