Delaware General Assembly

CHAPTER 620.

OF CIVIL ACTIONS.

AN ACT for the Protection of Keepers of Livery and Boarding Stables.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

SECTION 1. That any hotel-keeper, inn-keeper, or other person who keeps a livery or boarding stable, and for price or reward at such stable furnishes food or care for any horse, or has the custody or care of any carriage, cart, wagon, sleigh or other vehicle, or any, harness, robes, or other equipments for the, same, shall have a lien upon such horse, carriage, cart, wagon, sleigh, vehicle, harness, robes, or equipments, and the right to detain the same to secure the payment of such price or reward, and may, subject to the provisions of this act hereinafter contained, after the expiration of fifteen days from the time the same or any part thereof became due and payable, the same remaining unpaid in whole or in part, sell the property upon which he has such lien at public sale, at such livery or boarding stable, to the highest and best bidder or bidders therefor, first giving at least ten days' notice of such sale by handbills posted in five or more public places in the county in which such sale is to be had and by advertisement in a newspaper published in said county, describing the property to be sold and naming the day, hour and place of sale thereof, and may apply the money arising from said sale to the payment of the amount then remaining due, including therein compensation at the same rate as such stipulated price or reward for food, care or custody furnished or bestowed as aforesaid up to the time of sale, together with the costs and expenses of sale; provided, however, that in case either before or after such price or reward has become due and payable, the keeper of such stable has parted with the possession or custody of the property subject to such lien, he may (if the contract for food care or custody as aforesaid was made with the owner of the aforementioned property), at any time within the space of ten days from the time of such parting with the possession or custody, thereof, make an affidavit, to be filed in the office of a justice of the peace of the county in which such stable is situated, describing such property, and stating the amount of such price or reward then remaining due and payable, from whom owing, and that the same is justly and truly due; and it shall there upon be the duty of such justice of the peace forthwith to issue to a constable a warrant for the seizure of such property and for the delivery thereof to the keeper of such stable, and such constable shall forthwith, at any place within such county, seize and deliver such property pursuant to such warrant, and thereafter the keeper of such stable shall have the right, unless there has been a previous execution and levy for an amount exceeding the value of the property, or unless such property has been sold fairly for a valuable consideration and delivered to the purchaser after the keeper of such stable has parted with its possession or custody and before such seizure thereof, to sell the same in manner aforesaid, after giving notice as aforesaid, and may apply the money arising from such sale in mariner aforesaid. The balance, if any, of the proceeds of sale shall be paid to the owner or owners of the property sold; but in case such owner or owners cannot be found such balance shall be deposited in the Farmers' Bank of the State of Delaware, for the county in which such sale has been had, to the credit of such owner or owners. Provided, however, that if the owner or owners of the property subject to such lien, 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 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 hereinbefore contained.

SECTION 2. That an action of replevin shall lie to recover the property detained by or 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, with sufficient surety satisfactory to the officer to whom the writ of replevin is directed, entering into bond to such officer before service of such writ in a penalty double the value of such property, to be estimated by such officer, with condition according to the following form:

The condition of the above written obligation is such, that if ___________, at whose suit against ______ 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 _________, or executors or administrators, in the said suit, then the said obligation shall be void.

The defendant in the replevin may plead generally non cepit, non detinuit, property 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 for food, care, or custody furnished or bestowed as aforesaid, which amount may include 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, that neither the plea of non cepit or non detinuit shall ever accompany or be tried or considered in connection with an avowry. He may also plead such other pleas, not inconsistent with the provisions or purpose of this act, as the court, by general rule or upon special application, shall allow.

SECTION 3. The plea of non cepit shall have the same effect as heretofore. Upon the plea of non detinuit it shall be incumbent upon the plaintiff to prove a demand upon the defendant before the commencement of the action for the delivery to him of 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 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.

SECTION 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 detention 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 entered for the plaintiff upon the plea of property in a stranger, shall be 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.

SECTION 5. If there be judgment of non-suit, or by default, or upon demurrer, or otherwise, 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.

SECTION 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.

SECTION 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.