LE

2d. For services rendered on board at the request of, or contract with, their respective owners, masters, agents, or consignees.

3d. For materials furnished in their construction, or repair, or equipment:

4th. For their wharfage and anchorage within the state :

5th. For non-performance or mal-performance of any contract for the transportation of persons or property, made by their respective owners, masters, agents, or consignees.

1: 6th. For injuries committed by them to persons or property: Provided, that the wages of mariners, boatmen, and others employed in the service of such steamers, vessels, and boats, shall have preference over all other demands.

directly against

etc.

SEC. 318. Actions for demands arising upon any of the grounds Action may be specified in the preceding section, may be brought directly against such steamer, such steamers, vessels, or boats. SEC. 319. The complaint shall designate the steamer, vessel, or Complaint, whet boat by name, and shall be verified by the oath of the plaintiff, orsome one on his behalf.

to state.

whom served.

SEC. 320. The summons attached to a certified copy of the com- Summons, on plaint, may be served on the master, mate, or any person having charge of the steamer, vessel, or boat, against which the action is brought.

may issue.

SEC. 321. The plaintiff, at the time of issuing the summons, or at Attachment any time afterwards, may have the steamer, vessel, or boat, against which the action is brought, with its tackle, apparel, and furniture attached, as security for the satisfaction of any judgment that may be recovered therein.

undertaking.

SEC. 322. The clerk of the court shall issue a writ of attachment, Plaintiff to give on the application of the plaintiff, upon receiving a written undertaking on behalf of the plaintiff, executed by two or more sufficient sureties, to the effect, that if judgment be rendered in favor of the steamer, vessel, or boat, as the case may be, he will pay all costs and damages that may be awarded against him, and all damages which may be sustained by such steamer, vessel, or boat from the attachment, not exceeding the sum specified in the undertaking, which shall in no case be less than five hundred dollars when the attachment is issued against a steamer or vessel, or less than two hundred dollars when issued against a boat. The undertaking shall be accompanied by an affidavit of each of the sureties, that he is a resident and freeholder or householder of the county, and worth double the amount specified in the undertaking over and above all his just debts and liabilities. The clerk shall file the undertaking and affidavits.

Attachment, how directed.

Attachment, how executed.

Who may defend action.

Mode of proceeding in action.

Attachment may be discharged.

Sale on attachment.

SEC. 323. The writ shall be directed to the sheriff of the county within which the steamer, vessel, or boat lies, and direct him to attach such steamer, vessel, or boat, with its tackle, apparel, and furniture, and keep the same in his custody until discharged by due course of law; unless the owner, master, agent, or consignee thereof, give him security by the undertaking of at least two sufficient sureties, in an amount sufficient to satisfy the demand in suit, which shall be specified in the writ, besides costs; in which case, to take such undertaking.

SEC. 324. The sheriff to whom the writ is directed and delivered shall execute the same without delay, and shall, unless the undertaking mentioned in the last section be given, attach and keep in his custody the steamer, vessel, or boat named therein, with its tackle, apparel, and furniture, until discharged by due course of law; but the sheriff shall not be authorized by any such writ to interfere with the discharge of any merchandise on board of such steamer, vessel, or boat, nor with the removal of any trunks or other property of passengers, or of the captain, mate, seaman, steward, cook, or other persons employed on board.

SEC. 325. The owner, master, agent, or consignee of the steamer, vessel, or boat, against which the action is brought, may appear and answer, or plead to the action; and may except to the sufficiency of the sureties on the undertaking filed on the behalf of the plaintiff, and may require sureties to justify, as in actions against individuals upon bail on arrest.

SEC. 326. All proceedings in actions under the provisions of this chapter shall be conducted in the same manner as in actions against individuals, except as otherwise herein provided: and in all proceedings subsequent to the complaint, the steamer, vessel, or boat may be designated as defendant.

SEC. 327. After the appearance to the action, of the owner, mas ter, agent, or consignee, the attachment may, on motion, be discharged, in the same manner, and on like terms and conditions, as attachments in other cases, subject to the provisions of section three hundred and twenty-nine.

SEC. 328. If the attachment be not discharged, and a judgment be recovered in the action in favor of the plaintiff, and an execution be issued thereon, the sheriff shall sell at public auction, after publication of notice of such sale for ten days, the steamer, vessel, or boat, with its tackle, apparel, and furniture, or such interest therein as may be necessary, and shall apply the proceeds of sale, as follows:

1st. When the action is brought for demands other than the wages

of mariners, boatmen and others employed in the service of the steamer, vessel, or boat sold, to the payment of the amount of such wages, as specified in the execution:

2d. To the payment of the judgment and costs, including his fees, and,

3d. He shall pay any balance remaining to the owner, master, agent, or consignce, who may have appeared in the action; or if there be no appearance, then into court, subject to the claim of any party or parties legally entitled thereto.

claims of persons

steamers, etc.,

SEC. 329. Any mariner, boatman, or other person employed in the Provision for service of the steamer, vessel, or boat attached, who may wish to as- employed in sert his claim for wages against the same, the attachments being issued attached. for other demands than such wages, shall file an affidavit of his claim, setting forth the amount and the particular service rendered, with the clerk of the court; and thereafter no attachment shall be discharged upon filing an undertaking, unless the amount of such claim, or the amount determined as provided in the next section, be covered thereby in addition to the other requirements; and any execution issued against such steamer, vessel, or boat, upon judgment recovered thereafter, shall direct the application of the proceeds of any sale: first, to the payment of the amount of such claims filed, or the amount determined, as provided in the next section which the clerk shall insert in the writ; and second, to the payment of the judgment and costs, and sheriff's fees; and shall direct the payment of any balance to the owner, master, agent, or consignee who may have appeared in the action; but if no appearance by them be made therein, it shall direct a deposit of the balance in court.

SEC. 330. If the claim of the mariner, boatman, or other person, filed with the clerk of the court, as provided in the last section, be not contested within five days after notice of the filing thereof by the owner, master, agent, or consignee of the steamer, vessel, or boat against which the claim is filed, it shall be deemed admitted; but if contested, the clerk shall endorse upon the affidavit thereof a statement that it is contested, and the grounds of the contest; and shall immediately thereafter order the matter to a single referee for his determination, or he may hear the proofs and determine the matter himself. The judgment of the clerk, or referee, may be received by the county judge either in term or vacation, immediately after the same is given, and the judgment of the county judge shall be final. On the review, the county judge may use the minutes of the proofs taken by the clerk, or referee, or may take the proofs anew.

The like.

SEC. 331 The notice of sale published by the sheriff shall contain Notice of sale,

what to contain.

Appeal.

a statement of the measurement and tonnage of the steamer, vessel, or boat, and a general description of her condition.

SEC. 332. From orders and judgments under this chapter, an appeal may be taken by the owner, master, agent, or consignee, on the same terms and conditions as appeals in actions against individuals.

Judgment or order, how reviewed.

Order made out

of court without notice.

Who may appeal. Parties, how designated.

Appeal, in what

cases.

Appeal, how made.

Case may be annexed to record.

TITLE IX.

OF APPEALS IN CIVIL ACTIONS.

CHAPTER I.

APPEALS IN GENERAL.

SECTION 333. A judgment or order in a civil action may be review ed as prescribed by this title, and not otherwise.

SEC. 334. An order made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it; or may be vacated or modified on notice, in the manner in which other motions are made.

SEC. 335. Any party aggrieved may appeal in the cases prescribed in this title. The party appealing shall be known as the appellant, and the adverse party as the respondent.

SEC. 336. An appeal may be taken:

1st. From a final judgment in an action, or special proceeding, commenced in the court in which the judgment is rendered, within one year after the rendition of the judgment.

2d. From a judgment rendered on an appeal from an inferior court, within ninety days after the rendition of the judgment.

3d. From an order made at a special term within sixty days after the order is made, and entered in the minutes of the clerk.

This section shall not extend to appeals to the district courts from orders or judgments of the probate courts, but shall extend to judgments rendered in the district courts upon such appeals.

SEC. 337. The appeal shall be made by filing with the clerk of the court, with whom the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice upon the adverse party or his attorney.

SEC. 338. When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall, within twenty days after the enty of such judgment or order, prepare such statement, which shall contain the grounds upon which he intends to rely on the appeal, and so much of the evidence

as may be necessary to explain the grounds, and no more; and shall serve a copy thereof upon the adverse party. The respondent may, within five days thereafter, prepare amendments to the statement, and serve a copy on the appellant. If such amendments are admitted, the statement shall be corrected accordingly; and if not admitted, the statement and amendments shall be presented to the judge who tried or heard the case, upon notice of two days to the respondent, and a true statement shall thereupon be settled by such judge.

case when deem

ed waived.

SEC. 339. If the party shall omit to make a statement within the Right to make a time above limited, he shall be deemed to have waived his right thereto; and when a statement is made and the parties shall omit within the several times above limited, the one party to propose amendments, the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the statement as proposed, and the latter to have agreed to the amendments as proposed.

may

be en

SEC. 340. The several periods of time above limited larged, upon good cause shown by the judge before whom the cause

was tried.

SEC. 341. The statement, when settled by the judge, shall be signed by him, with his certificate that the same has been allowed and is correct: when the statement is agreed upon by the parties, they or their attorneys shall sign the same with their certificate that it has been agreed upon by them, and is correct. In either case, when settled or agreed upon, it shall be filed with the clerk.

Time may be enlarged.

Case, how settled.

annexed to

SEC. 342. The clerk shall annex the statement, if the appeal be Case to be from a final judgment, to the judgment roll; if the appeal be from an record, etc. order, to such order, or to a copy thereof.

preceding

SEC. 343. The provisions of the last five preceding sections shall not Limitation of apply to appeals taken from an order made at a special term upon sections. affidavits filed; but such affidavits shall be annexed to the order in the place of the statement mentioned in those sections.

on appeal.

SEC. 344. Upon an appeal from a judgment, the court may review Power of court any intermediate order involving the merits, and necessarily affecting the judgment.

SEC. 345. Upon an appeal from a judgment or order, the appellate The like. court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties; and may set aside or confirm, or modify any or all of the proceedings subsequent to or dependent upon such judgment or order, and may, if necessary or proper, order a new trial. When the judgment or order is reversed or modified, the appellate court may