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court may fix. If it shall appear that such bond is insufficient, the magistrate or court shall cause a new bond to be filed for a greater amount, or with additional security.

§ 1746. Whenever the work or material for which a lien is filed shall be furnished to any contractor for use as set forth in section 1741, the owner may retain from the amount payable to the contractor sufficient to cover the amount due or to become due to the person or persons who filed the lien.

PART II.-HIGHWAYS IMPROVEMENTS.

§ 1747. Whenever a lien shall attach to any real property, or any interest therein, or other benefits or betterments or for any part of the expense of any opening, closing, or improvement of any public highway in the Territory of Hawaii, and the amount of such lien shall not be paid in ninety days after such lien attaches, the superintendent of public works may enforce such lien in the following manner:

1. By a suit in equity in the nature of suits for the foreclosure of mortgage liens.

2. Or by advertisement and sale of premises, rights, or property upon which the lien attaches.

3. Or by such other action or suit at law or in equity as may be by law or equity provided for such cases.

§ 1748. Whenever a lien shall be enforced by advertisement and sale, the superintendent of public works or chief clerk of the department of public works shall advertise and publish in one or more newspapers published in the Territory, once each week for four consecutive weeks, in the English and Hawaiian languages, a notice of sale of the premises upon which such lien attached. All notices and sales may be given and had in Honolulu. Such notice shall be signed by the superintendent or chief clerk, and set forth substantially—

1. The date of lien, and for what incurred.

2. Amount of lien and interest.

3. The location of premises and description of the premises sufficient to identify them.

4. The name of owner or party interested in the premises, or rights, or property, upon which lien attached, when same attached, if known; otherwise to be indicated as unknown.

5. The time and place of sale.

6. A notice to the owners or parties in interest to redeem.

7. Such other matters as may be deemed advisable to attract attention, and cause a fair notice and a fair sale.

§ 1749. The sale shall be at public auction, and the premises, rights therein, or property shall be sold to the highest bidder for cash.

From the proceeds of sale there shall be deducted and paid the amount due on the lien, together with interest, costs, charges, and expenses of recording the lien and enforcing the same, including the certificate of sale, and a deed or deeds to purchaser.

Any surplus of purchase price shall be paid to the owner or party thereto entitled, if known, otherwise to be deposited in the public Treasury to the order of the party entitled to same.

§ 1750. On the receipt of the purchase money at any such sale, the superintendent of public works shall execute and deliver a deed to the purchaser. Such deed shall contain a recitation of the material facts connected with the lien, and the enforcing thereof, and a copy of notice of sale, and in all matters connected therewith such deed

shall be evidence of the material facts therein stated, and the regularity of all proceedings, and on delivery shall pass the title in the premises or property or rights sold to the purchaser.

§ 1751. No sale or transfer of the property, premises, or rights therein, upon which a lien attached, by the party owning or interested therein, shall impair the lien or the enforcement of the lien or sale thereunder.

§ 1752. Within thirty days after the sale the superintendent of public works, or the chief clerk, shall file a sworn certificate setting forth the facts connected with the enforcing of the lien and the sale, in the office of the registrar of conveyances in Honolulu, for record, which certificate shall be recorded and indexed in the names of the owners of land, property, or rights sold (if known, otherwise indicated as unknown), and of the purchaser thereof; and shall also be indexed under letter H, a title "Highway lien," with location of highway and book and page where certificate is recorded.

§ 1753. At any time within six months after the recording of the certificate of sale the person or persons owning or interested in the land, property, or rights on which the lien attached and the sale made may redeem the same by paying to the purchaser the purchase price, the expense of deed and recording, together with interest on such purchase price, cost, and expense, at the rate of ten per cent per month from the date of sale. And upon the tender of the amount to redeem, the purchaser shall execute a proper quitclaim or release deed, at the expense, however, of one making the tender.

§ 1754. When any lien is released or paid, or a sale shall take place enforcing such lien, the registrar of conveyances shall note on the margin of the book of record, opposite the particular lien, the liber and page where the release or certificate of sale has been recorded, and when payment is made to the superintendent of public works he shall cause note of payment likewise to be entered on the margin of book of record in the same manner.

[PART III.-DOMESTIC SHIPS AND VESSELS.]

[§§ 1755-1758.]

PART IV.-CARE OF ANIMALS.

§ 1759. Whoever pastures, feeds, or shelters animals by virtue of a contract with or by the consent of the owner of such animals, for a compensation agreed upon, has a lien on such animals for such pasturing, feeding, or sheltering to secure payment thereof, with costs.

§ 1760. If the owner of such animal or animals, after demand and notice, in writing, that such lien will be enforced served upon him, shall fail to pay the amount due for such pasturing, feeding, or sheltering within thirty days, the holder of the lien may cause such animal or animals to be sold at public auction, upon notice of such sale being given for fifteen days by publication in an English or Hawaiian newspaper, or by posting such notice in the Hawaiian and English languages at the court-house of the district where no newspaper is published. § 1761. Any excess over the amount due, and costs of sale and advertising, realized from such sale, shall be paid to the owner of the animals sold.

NOTE TO CHAPTER 111.

§§ 1741-1746 are S. L. 1888, ch. 21. §§ 1747-1754 are S. L. 1890, ch. 42. §§ 17551758 are S. L. 1870, ch. 6, C. L., p. 535. SS 1759-1761 are S. L. 1892, ch. 9. Procedure to enforce liens on vessels. See §§ 1509-1514. Cases in Hawaiian Reports: Part I. Lucas v. Redward, 9 Haw., 23; Allen & Robinson v. Redward, 10 Haw., 151; Allen & Robinson v. Redward, 10 Haw., 273.

CHAPTER 112.

INTERPLEADER.

§ 1762. Upon application made by or on behalf of any defendant sued in any court of record in any personal action, such application being made after declaration and before plea by affidavit or otheiwise, showing that such defendant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same, and that such defendant does not in any manner collude with such third party, but is ready to bring into court or to pay or dispose of the subject-matter of the action in such manner as the court (or any judge thereof) may order or direct, it shall be lawful for the said court, or any judge thereof, to make rules and orders calling upon such third party to appear and to state the nature and particulars of his claim, and maintain or relinquish his claim, and upon such rule or order to hear the allegations as well of such third party as of the plaintiff, and in the meantime to stay the proceedings in such action, and finally to order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more feigned issue or issues; and also to direct which of the parties shall be plaintiff or defendant on such trial, or with the consent of the plaintiff and such third party, their counsel or attorneys, to dispose of the merits of their claims and determine the same in a summary manner, and to make such other rules and orders therein as to costs and all other matters as may appear to be just and reasonable.

§ 1763. The judgment in any such action or issue as may be directed by the court or judge, and the decision of the court or judge, in a summary manner, shall be final and conclusive against the parties and all persons claiming by, from, or under them.

§ 1764. If such third party shall not appear upon such rule or order to maintain or relinquish his claim, being duly served therewith, or shall neglect or refuse to comply with any rule or order to be made after appearance, it shall be lawful for the court or judge to declare such third party and all persons claiming by, from, or under him to be forever barred from prosecuting his claim against the original defendant, his executors, or administrators; saving, nevertheless, the right or claim of such third party against the plaintiff, and thereupon to make such order between such defendant and the plaintiff as to costs and other matters as may appear just and reasonable.

§ 1765. If upon application to a judge in the first instance, or in any later stage of the proceedings, he shall think the matter more fit for the decision of the court, it shall be lawful for him to refer the matter to the court, and thereupon the court shall and may hear and dispose of the same in the same manner as if the proceeding had originally commenced by rule of court instead of the order of a judge.

§ 1766. And whereas difficulties sometimes arise in the execution of process against goods and chattels issued by or under the author

ity of the courts in this Territory by reason of claims made to such goods and chattels by assignees of bankrupts and other persons, not being the parties against whom such process had issued, whereby the chief sheriff, sheriffs, and other officers are exposed to the hazard and expense of actions, and protection in such cases to such chief sheriff, sheriffs, and other officers: Be it therefore further enacted, That when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any such process, or to the proceeds or value thereof, it shall and may be lawful to and for the court out of which the execution shall have been issued, or any judge thereof, upon application of such chief sheriff, sheriff, or other officer made before or after the return of such process, and as well before as after any action brought against such chief sheriff, sheriff, or other officer, to call before them or him by rule, order, or summons, as well the party issuing such process as the party making such claim; and thereupon to exercise for the adjustment of such claims as the relief and protection of the chief sheriff, sheriff, or other officer, all or any of the powers and authorities herein before contained, and make such rules, orders, and decisions as shall appear to be just, according to the circumstances of the case; and the cost of all such proceedings shall be in the discretion of the court or judge.

§ 1767. Where an action has been commenced in respect of a common-law claim for the recovery of money or goods, or where goods or chattels have been taken or are intended to be taken in execution under process issued from any court, and the defendant in such action or the chief sheriff, sheriff, or other officer has applied for relief under this chapter, it shall be lawful for the court or judge to whom such application is made to exercise all the powers and authorities given to them by this chapter, though the titles of the claimants to the money, goods, or chattels in question or to the proceeds or value thereof have not a common origin, but are adverse to and independent of one another. § 1768. When goods or chattels have been seized in execution by the chief sheriff or other officer under process of any court, and some third person claims to be entitled under a bill of sale, chattel mortgage, or otherwise to such goods and chattels by way of security fo a debt the court or a judge may order a sale of the whole or part thereof, upon such terms as the payment of the whole or part of the secured debt or otherwise as they or he shall think fit, and may direct the application of the proceeds of sale in such manner and upon such terms as to such court or judge may seem just.

§ 1769. Upon the hearing of any rule or order from a court of record calling upon persons to appear and state the nature and particulars of their claims it shall be lawful for the court or judge wherever from the smallness of the amount in dispute or of the value of the goods seized, it shall appear to them or him desirable and right so to do, at the request of either party to dispose of the merits of the respective claims of such parties, and to determine the same in a summary manner upon such terms as they or he shall think fit to impose, and to make such other rules and orders therein as to costs and all other matters as may be just.

§ 1770. In all cases of interpleader proceedings where the question is one of law and the facts are not in dispute the judge shall be at liberty, at his discretion, to decide the question without directing an action or issue, and (if he shall think it desirable) to order that a special case be stated for the opinion of the supreme court, and the

proceedings upon such case shall (as nearly as may be) be the same as upon a submission to the court under the laws now in force.

§ 1771. The judgment in any such action or issue as may be directed by the court or judge in any interpleader proceedings and the decision of the court or any judge in a summary manner shall be final and conclusive against the parties and all persons claiming by, from, or under them.

§ 1772. All rules, orders, matters, and decisions to be made and done in interpleader proceedings under this chapter (excepting only affidavits) may, together with the declaration or summons in the cause (if any), be entered of record in the supreme court, with a note in the margin expressing the true date of such entry, to the end that the same may be evidence in future times if required, and to secure and enforce the payment of costs directed by any such rule or order, and every such rule or order so entered shall have the force and effect of a judgment in the supreme court.

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NOTE TO CHAPTER 112.

§§ 1762-1772 are S. L. 1876, ch. 33, C. L., p. 381. Cases in Hawaiian Reports: Re Akana, 6 Haw., 254.

CHAPTER 113.

QUIETING TITLES.

§ 1773. Action may be brought in the supreme court or in any of the circuit courts by any person, against another person, who claims adversely to the plaintiff an estate or interest in real property, for the purpose of determining such adverse claim.

§ 1774. Any person may be made a defendant in such action who has or claims an interest in the property adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.

§ 1775. If at the time of the commencement of such action the property in question is in the possession of a tenant, the landlord may be joined as a party defendant.

§ 1776. If in such action the defendant disclaim in his answer any interest or estate in the property or suffer judgment to be taken against him without answer, the plaintiff shall not recover costs.

NOTE TO CHAPTER 113.

SS 1773-1776 are S. L. 1890, ch. 18.

Cases in Hawaiian Reports: Kahoiwai v. Limaeu, 10 Haw., 507.

CHAPTER 114.

ACQUISITION OF RIGHTS OF WAY.

§ 1777. Whenever any person shall be desirous of acquiring a private right of way across the land of another person or persons for a railway, drain, flume, water pipe or ditch for agricultural, milling, manufacturing, mining, domestic, or sanitary purposes, and is unable to agree with the person or persons across whose land or lands it is desired to acquire such right of way, petition may be made to any circuit judge of the judicial district within which such land is situated, setting forth the name or names of the owner or owners of the land or

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