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OF JUDGMENTS. CHAP. 110. CHAP. 620, VOL. 17.

the owner or owners of the property sold; but in case such owner or owners cannot be Balance to owner of property. found such balance shall be deposited in the Farmers' Bank of the State of Delaware, When deposited for the county in which such sale has been had, to the credit of such owner or owners. in bank. Provided, however, that if the owner or owners of the property subject to such lien, Proviso. and detained by or seized and delivered to the keeper of such stable, shall at any time after such price or reward has in whole or in part become due and payable, and before sale, demand such property from the keeper of such stable, such lien shall be lost Lien, when lost. unless the keeper of such stable shall, within the space of fifteen days from the making

of such demand upon him sell such property under and in accordance with the provisions herein before contained.

SEC. 2. That an action of replevin shall lie to recover the property detained by or Replevin. seized and delivered to the keeper of a livery or boarding stable as aforesaid, with damages and costs for the detention thereof, at any time before sale thereof as aforesaid, against the keeper of such stable at the suit of the person or persons having the right, aside from any lien under the provisions of this act, to the immediate possession of such property, whether having the general or only a special property therein, the plaintiff or plaintiffs in the action, or some substantial person for him, her, or them, Security to with sufficient surety satisfactory to the officer to whom the writ of replevin is directed, plaintiff, entering into bond to such officer before service of such writ in a penalty double the Penalty of bond. value of such property, to be estimated by such officer, with condition according to the

following form :

against

The condition of the above written obligation is such, that if at whose suit Form. ——— a writ of replevin has been issued out of the Superior Court of the State of Delaware for county, returnable to term next, or —— executors or administrators, shall prosecute said suit with effect, and shall fully and without delay abide by and satisfy any judgment which shall be given against the said executors or administrators, in the said suit, then the said ob

, or

ligation shall be void.

The defendant in the replevin may plead generally non cepit, non detinuit, prop- Defendant's pleas. erty in a stranger, or an avowry of detention, in accordance with the provisions of this act, stating the amount claimed to be due and payable to him at the time of the replevy Statement of for food, care, or custody furnished or bestowed as aforesaid, which amount may in- plea. clude not only the stipulated price or reward then due and payable for the same, but also compensation at the same rate for food, care, or custody furnished or bestowed, as aforesaid, up to the time of such replevy. Such defendant may plead any or all of the above pleas; provided, however, that an avowry shall always be accompanied by and tried or considered in connection with the plea of property in a stranger; and further, Plea of avowry, how pleaded. that neither the plea of non cepit or non detinuit shall ever accompany or be tried or Further proviso considered in connection with an avowry. He may also plead such other pleas, not as to pleas. inconsistent with the provisions or purposes of this act, as the court, by general rule or upon special application, shall allow.

Proviso.

Upon Effect of plea

SEC. 3. The plea of non cepit shall have the same effect as heretofore. the plea of non detinuit it shall be incumbent upon the plaintiff to prove a demand of non cepit. upon the defendant before the commencement of the action for the delivery to him of Demand, when. the property replevied, or a sufficient excuse for the omission of such demand. Upon

the plea of property in a stranger, it shall be incumbent upon the plaintiff to prove that Plaintiff's proof.

at the time of the commencement of the action he had the right, aside from any lien

under the provisions of this act, to the immediate possession of the goods and chattels replevied, whether as having the general or only a special property therein.

Judgment for

costs.

Damages

entered.

OF JUDGMENTS. CHAP. 110. CHAP. 620, VOL. 17.

SEC. 4. The judgment of the court if entered for the plaintiff upon the plea of non cepit or non detinuit, shall be against the defendant for costs and damages for the deassessed by jury. tention until the time of the replevy, to be assessed by a jury, but if entered for the defendant upon either of said pleas, the judgment shall be against the plaintiff for costs. Judgment, if for Judgment, if entered for the plaintiff upon the plea of property in a stranger, shall be plaintiff or defendant, how against the defendant for costs and damages for detention as aforesaid, but if entered for the defendant upon said plea the judgment shall be against the plaintiff for costs and for a return of the property replevied within ten days, or the value thereof, together with damages for the detention thereof from the time of replevy, such value and damages to be separately assessed by a jury. Judgment, if entered for the plaintiff upon an avowry, shall, if the issue upon the accompanying plea of property in a stranger be determined in favor of the plaintiff, be against the defendant for costs and damages for detention until the time of replevy, to be assessed as aforesaid; but if the issue upon such accompanying plea be determined in favor of the defendant, judgment shall be against the plaintiff for costs and for a return of the property, or the value thereof, with damages for detention from the time of replevy as aforesaid. Judgment, if entered for the defendant upon an avowry, shall, if the issue upon the accompanying plea of property in a stranger be determined in favor of the defendant, be against the plaintiff for costs and for a return of the property or the value thereof, with damages for detention from the time of replevy as aforesaid; but if the issue upon such accompanying plea be determined in favor of the plaintiff, the judgment shall be against the plaintiff for costs and for the amount due to the defendant for food, care, or custody furnished or bestowed, to be assessed as aforesaid.

or upon demurrer.

Value deter

mined by jury or as the court directs.

SEC. 5. If there be judgment of non-suit, or by default, or upon demurrer, or otherJudgment of non-suit, default, wise, without trial by jury, the value of the property replevied, or damages for detention thereof, or the amount due to the defendant for food, care, or custody furnished or bestowed as aforesaid, may be assessed and determined either by a jury at the bar, or upon a writ of inquiry, or otherwise, as the court shall order; and thereupon such judgment may be entered as the court shall deem in furtherance of the provisions or purpose of this act. The court shall also, subject to the provisions of this act, determine the judgment to be entered where two or more pleas are tried or considered together, and shall make such orders or rules for the disposition of the cause upon its merits as it shall deem proper or necessary. It may also regulate the practice of issuing writs for the enforcement of any judgment entered in accordance with the provisions of this act.

Jurisdiction of the court

Judgment for defendant.

Assignment of replevin bond.

Suit on bond.

SEC. 6. If judgment be given for the defendant, or his executors or administrators, the officer to whom the bond was given before the service of the writ of replevin shall, on request, assign the same, under his hand and seal, in the presence of at least one credible witness, to the defendant in the writ, or his executors or administrators, and the assignee or assignees may sue on the bond in his, her, or their own name or names. SEC. 7. If, after a judgment for a return, the property replevied, or any part thereof, be returned in an injured or depreciated condition, and such injury or depreciation has resulted from the wrong or negligence, since the replevy, of any other person than the defendant therein, his executors or administrators, the defendant, or his executors or administrators, may recover upon the bond aforesaid, so assigned as aforesaid, in addition to the moneys which shall have been adjudged to him or them in such action of replevin, damages to the extent of such injury or depreciation.

Passed at Dover, April 2, 1885.

OF EXECUTION. CHAPTER 111.

CHAPTER 259, VOL. 19, LAWS OF DELAWARE.

AN ACT FOR THE PROTECTION OF THE OWNERS OF STALLIONS.

service of sire.

SECTION 1. That from and after the passage of this act each and every colt in this Colts liable for State shall be liable for the service of the stallion, its sire. Provided, however, that' Proviso. in any and all cases where the pedigree or qualities of the stallion is misrepresented by its owner or agent, then the foal shall not be liable for the service as aforesaid.

can be brought.

SEC. 2. And in order for the owner or owners of any stalion or stallions to avail them- Description and pedigree of selves of the benefits of this act, it shall be necessary for such owner or owners to have stallion to be printed and posted, at ten of the most public places in the county in which the said posted. stallion or stallions are to stand or travel, a full description and pedigree of his or their stallion or stallions, and to exhibit a copy to the owner of any mare or mares about to be served by such stallion or stallions. After sixty days from the day the foal was When action dropped, and a refusal to pay by the then owner of the mare and colt, it shall be the duty of the owner of the stallion, the sire of such cold, to bring his action for the service of the stallion, as per agreement. And if the justice of the peace shall be satis- Duty of Justice fied of the correctness of the claim and give judgment in favor of such owner, he may at once take out execution on such judgment, and when so executed the lien shall revert back to the day of the foaling of such colt, and shall be a paramount and prior lien on such colt to any other execution or mortgage.

Passed at Dover, May 11, 1891.

of the Peace.

[blocks in formation]

5 Form.

6. How served.

7. How enforced.

8. Proviso.

9. If rents sufficient, ELEGIT may issue. 10. If not sufficient, VENDITIONI EXPO

NAS.

11. Defendant or his tenant to be removed.

12. But only from his share.

13. If others in possession, sheriff to inquire of title.

14. Court to award a HAB. FAC. POSSESSIONEM.

15. The finding not conclusive. 16. Plaintiff not concluded.

17. Remedy where tenant by elegit is evicted.

18. VEND EXPONAS; to whom directed. 19. Liability of officer.

20. Sale of land upon; how made.

21. Not to be made until thirty days. Order to sell perishable goods.

22. Notice of sale of goods. Restriction. 23. Notice of sale of land. Publication. 24. Sale of land; where made.

25. Officer not to purchase at his sale. Penalty.

SEC. 26. Deed.

27. Title.

28. Rent; apportionment; remedy; de-
fence.

29. Order on sheriff to make a deed for
land sold by his predecessor.

30. Title under such order.

prejudice.

Without

31. Petition and order to be recorded.
32. Deed by the preceding sheriff; when
good.

Act in relation to sale of real estate
under execution.

33. Land may be delivered on LIBERARI
FACIAS, Valuation.

34. Execution may be had for residue.
35. Title under a liberari facias.

36. When a WRIT OF POSSESSION will be
awarded.

37. Only on a rule to show cause.
38. To be applied for within two terms.
39. How served.

40. Not to be awarded against the ten-
ant of another.

41. For undivided share,

42. Stay of execution to be allowed.
43. Form of the writ.

44. Not conclusive as to title; nor to bar
any remedy.

45. Execution attachment; proceedings
on sale of perishable goods.
Acts exempting wages from execu-
tion attachment.

Lands liable to execution.

Property exempt

Provisos.

Not to be retrospective.

OF EXECUTION. CHAPTER 111.

46 Executions to be returned on second
day of court.

47. Inventory and appraisement of goods.
48. Description of lands. Inquisition.
49. Prior executions to be specified,

50. Liability of sheriff for not making
return,

51. CA, SA. not to issue, until, &c.
52. Nor without an affidavit of fraud.
53 Party arrested; summary remedy.
54. Restriction of these provisions.
55. When SCI. FA. SUR LE MORT, may
issue.

56. Payment of part may be pleaded.
57. Judgment if defendant fail to appear.
58. Levy and sale on LEVARI FACIAS,
Liberari facias,

59. Title of purchaser.

60. Overplus to be paid defendant.

61. SCI. FA. on judgment; when sued out.

62. Limit on execution of judgments by TRANSCRIPT, and on APPEAL. Party plaintiff admitted on motion, 63. Execution binds on delivery if levied in sixty days,

Lien limited to three years, as against subsequent executions.

64. Priority of lien of executions.
65. Date to be indorsed.

66. Sheriff to note and indorse time.
67. Restriction of these provisions.
68. Real debt to be indorsed on execu-
tions.

69. Imprisonment no satisfaction, if party
die or escape.

70. Liability of offiecr for escape; remedy.
71. Land sold not restored though judg
ment reversed.
Additional acts.

WHAT SUBJECT TO EXECUTION.

SECTION 1. Lands, tenements and hereditaments, where no sufficient personal estate can be found, may be seized and sold upon judgment and execution obtained.

SEC. 2. The following goods and chattels, the property of white citizens of this State, shall be exempt from execution process, to wit:-1st. The necessary wearing apparel of the debtor and his wife and children; one bedstead, bed, and the necessary bedding for every two persons of the family: one iron stove used for warming the dwelling-house; and fuel, not exceeding the value of five dollars, procured and designed for the use of the family.

2. The bibles and school books used in the family;

3. One cow, one swine, and one ton of hay;

4. The library, and tools, or implements, of the debtor, necessary for carrying on his profession, or trade, not exceeding in value fifty dollars;

5. Rights of burial; and tombs whilst in use as repositories for the dead;

6. Other household furniture necessary for the debtor and his family, not exceeding in value twenty-five dollars;

Provided always, that the value of the whole of the articles exempted, shall not exceed one hundred dollars: and provided further, that if the debtor shall not, at the time of the execution of said process, be in possession of all, or any, of the above specified articles, then any other property which he shall have in his possession, amounting in value to one hundred dollars, shall be exempt as aforesaid, except in every case for taxes due in either of the counties of this State, or in the city of Wilmington; which said articles and the value thereof shall be ascertained by two impartial citizens of the county whereof the debtor is an inhabitant, to be appointed and to be sworn, or affirmed, faithfully and justly to fulfill the duties of said appointment, by any justice of the peace, constable, or sheriff, of the said county.

This section shall not extend to, or affect, any contract, or debt,

OF EXECUTION. CHAP. 111. CHAP. 562, VOL. 14.

nor Nor to apply to of county.

Kent or Sussex

made, or incurred, prior to the 4th day of July, A. D. 1861; to an execution issued upon a judgment recovered in any action trespass vi et armis; nor shall this section extend, or apply, to Chap. 86, vol. 11. execution process issued within Kent or [Sussex] county.

CHAPTER 562, VOL. 14, LAWS OF DELAWARE.

AN ACT TO EXEMPT FROM EXECUTION PROCESS CERTAIN ARTI-
CLES OF PERSONAL PROPERTY.

from execution

SECTION 1. That every person residing within this State shall have exempt from exe- Property exempt cution or attachment process the following articles of personal property, to wit: The or attachment, family Bible, school books and family library, family pictures, a seat or pew in any church or place of public worship, a lot in any burial ground, all the wearing apparel of the debtor and his family, and in addition to the articles hereinbefore specifically named shall have exempt the tools, implements and fixtures necessary for carrying on his or her trade or business, not exceeding in value seventy-five dollars.*

to apply to mer

trade,
Proviso.

collection of

SEC. 2. That every person residing within this State, and being the head of a fam- Property of a head of a family ily, shall have exempt from execution or attachment process, in addition to the exemp-exempt. tions made in the first section of this act, other personal property not exceeding in value two hundred dollars, the articles to be selected by the debtor. [Provided Chap. 779, vol.19. that this exemption shall not apply to goods and chattels of a merchantable Exemption not character bought to be sold and trafficked in by the person or persons in the pros-chandise in ecution of his, her or their regular business or occupation. And provided further, that no person shall have exempt from execution or attachment process any personal No exemption, property, excepting that which is expressly exempted by Section I of the act hereby except that provided by Section amended, when such exemption would prevent the collection according to law of any 1, to prevent debt or claim that may be due or growing due for labor or services (other than profes- debts due for sional services) rendered by any clerk, mechanic, laborer, or other employe of any person or persons against whom such execution or attachment process may have been or may be issued.] SEC. 3. That the property exempt and required to be valued by the provisions of Property exempt this act shall be valued by three judicious and impartial freeholders; one of said free- to be valued. Freeholders; holders shall be chosen by the creditor having the oldest execution in the hands of the how chosen. officer making the sale, one other of said freeholders shall be chosen by the debtor, and the other of said freeholders shall be chosen by the officer, and in case the creditor and debtor, or either of them shall neglect or refuse to name a freeholder, it shall be the duty of the officer to choose for the person neglecting or refusing, and to give notice to the freeholders thus chosen, in writing, under his hand, fixing the time and place in said notice they will be required to meet.

services of employers.

freeholders.

SEC. 4. It shall be the duty of the freeholders, upon the receipt of the notice and Meeting of the tender of the fee hereinafter named for services in making the valuation, to meet at the time and place mentioned in the notice, and before proceeding to make the valuation of property exempt under this act and requiring a valuation thereof, shall take the following oath or affirmation, to wit: (I do solemnly swear or affirm, as the case Oath. may be, that I will appraise the property of A. B., exempt from execution or attachment process under and by virtue of the laws of this State, at its true value in money, and that I will true schedule make to the best of my knowledge and understanding,) Valuation. *NOTE.-See Chap. 146, Vol. 16, page 831 Code.

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