OF CIVIL ACTIONS IN GENERAL. ments pro ment to the not be re ment shall be considered and treated as a payment pro tanto to Such pay the said contractor towards the moneys provided to be paid by tanto pay the said contractors: and provided further, that no person or per- original sons embraced within the provisions of this act, and entitled to contractor. avail themselves of the lien herein provided for, shall be con- What shall sidered as waiving the same by granting a credit, or receiving garded as a notes or other secureties, unless the same be received as pay the provi ment, or the lien expressly waived, but the sole effect thereof sions of this shall be to prevent such person or persons from availing themselves of the liens herein provided for until the expiration of the time agreed upon. waiver of act. SECTION 2. The proceedings to recover the amount of Proceedany ings for reclaim as aforesaid shall be by a writ of scire facias, in the follow-covery. ing form, to wit: Whereas County, ss. Scire facias scire facias. The State of Delaware. Form of To the Sheriff of said county, greeting: hath filed a claim in our Superior Court for the sum of for the county of against (for work and labor done or materials furnished as the case may be) (to or for) a certain building, to wit: (describing it as in the claim:) And whereas it is alleged that the said sum still remains due and unpaid to the said command you that you make known to said all such persons as may hold or occupy the said building, that they be and appear before the judges of our said court at on the day of i now we next, to show if any thing they know, or have to say, why the said sum of should not be levied of the said building to the use of the said according to the form and effect of the act of Assembly in such case made and provided. And have you then there this writ. Witness (as in similar writs.) issuance of serving No such Scire Facias shall be issued in any case within ten Time for days previous to the return day thereof. The said writ shall be scire facias. served in the same manner as other writs of Scire Facias, upon Mode of the defendant therein named, if he can be found within the said writ. county and a copy thereof shall be left with some person residing in the building, if occupied as a place of residence; but if not so occupied, it shall be the duty of the sheriff to affix a copy of such writ upon the door or other front part of such building. Judgment by default may be entered upon motion by the plain- Judgment tiff on the last day of the term to which said process is returna- by default ble, notwithstanding appearance by the defendant, unless said tended. defendant shall have previously filed in the cause an affidavit may be ex When. defence. OF CIVIL ACTIONS IN GENERAL. Affidavit of that he verily believes there is a legal defence to the whole or part of such cause of action, and setting forth the nature and character of the same; and if the defence be to a part only, then specifying the sum really due and judgment may be entered for the plaintiff at his election for the sum acknowledged to be due. If such claim be not filed ten days before the return day of said writ, or if judgment be not so entered by default, then like judgment. proceedings shall be had as in other cases of Scire Facias. The execution of every judgment under the foregoing provisions shall be by writ of Levari Facias, in the following form, Proceed ings in case of nonentry of Levari Form of Levari Facias, Mechanics be entered Amount claimed, date of to wit: County, ss. The State of Delaware To the Sheriff of said county, greeting: We command you that without any other writ from us of the following described building and lot of ground, to wit: (describing the same according to the record,) in your bailiwick, you cause to be levied as well a certain debt of lately in our Superior Court for the according to the form and for the county of day of which county aforesaid, to be levied also the interest A. D. day of and for the cost which accrued thereon. effect of an act of the General Assemprovided, and have you there moneys at our Superior Court in and there to be held on the next, to render unto the said for his debt, interest and costs aforesaid, and have you then there this writ. Witness (as in similar writs.) SECTION 3. It shall be the duty of the Prothonotary in each county of this State to procure and keep a docket, to be called lien docket. "The Mechanics' Lien Docket," in which he shall make an entry What shall of each claim so filed as aforesaid, setting down therein the therein. names of the parties, plaintiff and defendant, the amount claimed, the day upon which the claim is filed, and of the issuing of the filing claim Scire Facias, a description of the property against which the description claim is sought to be charged, amount for which judgment is rendered, the day on which the same is rendered, the party for and against whom it is rendered, and in case judgmant [be] for the plaintiff, the time to which the judgment relates back as a lien, and other entries necessary and proper to a full understanding of the case. The time to which the judgment shall relate back as a lien shall be ascertained in the same manner as the amount of the judgment is ascertained. of property &C. OF CIVIL ACTIONS IN GENERAL. provisions shall ex SECTION 4. The provisions of this act are hereby declared to what the extend to work and labor performed and furnished, or materials of this act furnished in plumbing, gas-fitting, paper-hanging, paving, wharf tend to. building, and to iron works and machinery of every kind in mills and factories, and to bridges, and shall be as well by and against corporations as individuals. provisions ther extend Proviso. davit in re ships, ves contain. ment as to SECTION 5. This act shall also extend to work and labor or What the materials performed or furnished in the construction, alteration, of this act furnishing, rigging, launching or repairing of any ship or vessel shall furwithin this State: Provided, nevertheless, that no bill of particu- to. lars and affidavit as aforesaid shall [be] filed more than four Time of days after such ship or vessel has been launched, rigged, fur- filing affi nished and ready for sea, or after such repairs have been com-lation to pleted. And the same shall contain the name of the ship or sels, &c. vessel, or a description thereof sufficient for identification. Upon what to filing said bill of particulars and affidavit, under the provisions of this section, the prothonotary may issue a writ of attachment, Attachdirected to the sheriff of the county in which the ship or vessel ships, vesmay be, commanding the sheriff to attach the defendant by such sels, &c. ship or vessel, together with the tackle, apparel and furniture, wheresoever the same be found in his bailiwick, so that he be and appear at the next term of the Superior Court to answer the plaintiff's demands. The sheriff shall, under such writ, seize Seizure, inand take possession of the said ship or vessel, and have the same appraise inventoried and appraised, and shall be answerable therefor. If vessels, &c. the defendant in the attachment shall at any time before judg ment appear and enter into recognizance to the plaintiff in said Recogniwrit of attachment in a reasonable penalty, and with surety to defendant. be approved by the Prothonotary, with condition to pay the Surety. condemnation money, and all costs, or otherwise abide the judg- of recogniment of the Superior Court in the case, if he fail to make good his plea, then the attachment shall be dissolved, the ship or vessel shall be discharged and the case shall proceed as in other cases of assumpsit for work and labor or materials furnished. ventory, ment of zance of Condition zance. On return of attach summons point audi termine SECTION 6. On the return of said writ of attachment or summons, the court may, upon petition of any person or persons ment or claiming to have performed or furnished work or labor or the court materials at the request of the plaintiff or plaintiffs in said attach P ment, appoint three suitable persons to audit and determine the tors to declaim or claims of the said plaintiff or plaintiffs, and also the claims in claim or claims of the petitioner or petitioners, who shall adjust and ascertain all the demands, including that of the plaintiff in the writ. The auditors shall severally be sworn or affirmed to perform their duties according to the best of their skill and knowl- tions of edge. They shall give ten days notice to the parties of the time controversy Oaths or affirma auditors. and notice meeting of quent by adjourn ment. vestigating OF CIVIL ACTIONS IN GENERAL. Time, place and place of their first meeting by advertisement, posted at the of first Court House door, and at least five other public places in the auditors. county. Their subsequent sittings shall be by adjournment duly Subse- made and publicly announced. They may investigate any claim meetings presented in any form they may judge best, and may examine any of the parties upon oath or affirmation. On receipt of the Mode of in- proceeds of the sale of the property attached or against which claims. judgment is obtained or any part thereof, the auditors shall calOn receipt culate and settle the proportions and dividends due the several of sale au- parties, and shall make report to the next term of the court after calculate such appointment, and upon confirmation of the report pay over dividends, to the several parties their respective share of the proceeds Payment of according to such apportionment. The court may hear exceptions to and correct such account and report, either in the calculations, dividends, apportionment, or otherwise. of proceeds ditors shall &C. proceeds to parties entitled. On failure to dissolve SECTION 7. If the attachment shall not have been dissolved. the attach- as herein before provided, judgment may be given for the plainment judg- tiff in the attachment, at the second term after issuing the writ, be obtained as in other cases of attachment, and thereupon the court may ment may at second term of court. Sale of property attached. When. order that the sheriff shall sell the property attached, on due notice, and pay the proceeds, deducting legal costs and charges, to auditors for distribution; any balance remaining due from the defendant in the attachment to any of the parties after such distribution of the proceeds, may be collected as other debts, and to be paid any surplus after paying costs, shall be returned to the defendant to auditors. or his executors, administrators or assigns. All sales made under Validity of sales. this act shall be good against the defendant, his executors, administrators or assigns. Moneys therefrom SECTION 8. Chapter 117, Volume 12, of the Laws of Delaware, entitled "An act securing to mechanics and others payment for labor and materials in erecting or repairing any building or structure within the State of Delaware," passed at Dover, March sistent acts 7th, 1861; Chapter 464, Volume 13, of the Laws of Delaware, repealed. entitled "An act to amend Chapter 117, Volume 12, of the Laws All incon Delaware," passed at Dover, February 24, 1869; Chapter 95, Volume 14, of the Laws of Delaware, entitled "An act to amend an act entitled 'An act securing to mechanics and others payment for labor and materials in erecting and repairing any building or structure within the State of Delaware," passed at Dover, March 7th, 1861, as amended by the act entitled "An act to amend Chapter 117, Volume 12, of the Laws of Delaware, passed at Dover, February 24, 1869," passed at Dover, March 29th, 1871; Chapter 96, Volume 14, of the Laws of Delaware, entitled "An act securing to mechanics and others payment for labor and materials in erecting or repairing any building or structure OF CIVIL ACTIONS IN GENERAL. within the State of Delaware," passed at Dover, March 7th, 1861, amended February 24th, 1869, amended March 29th, 1871; Chapter 96, Volume 14th, of the Laws of Delaware, entitled "An act securing to mechanics and others payment for labor and materials in erecting or repairing any building or structure within the State of Delaware," as published in the Laws of Delaware, Revised Code 1852, as amended, &c., 1874, on pages 668, 669, 670, 671, and 672 of said Revised Code; and Chapter 184, Volume 15, Laws of Delaware, entitled "An act to amend an act entitled 'An act securing to mechanics and others payment for labor and materials in erecting or repairing any building or structure within the State of Delaware," passed at Dover, March 26th, 1875, and all other act or parts of acts inconsistent with or supplied by the provisions of this act are hereby repealed, made null and void: Provided, That no suit or suits instituted Proviso. and now pending, under any of the acts herein repealed, shall Suits pendabate by reason of this act, but the said acts herein repealed shall not abate. be and the same are hereby maintained and continued in force so far as may be necessary to preserve and maintain the said this act to suits, and to complete and carry into effect any proceedings force for commenced thereunder as fully and completely as though this purposes. act had not been passed: And provided also, That this act shall be Certain treated and considered as applying to and embracing all contracts unaffected heretofore made for work and labor performed or materials fur- ction. nished in and about the erection, alteration, or repair of any building,house or structure where suits are not pending prior to the passage of this act: And provided further, That nothing in this section shall in any way invalidate or disturb any liens heretofore recovered under the provisions of the acts herein repealed, dated by but the said liens shall remain in force with the same power of execution as though said acts had not been repealed. Passed at Dover, March 20, 1879. ing shall Acts re pealed by continue in certain contracts Prior liens not invali this section |