Delaware General Assembly

CHAPTER 221

JUSTICES' JURISDICTION IN CIVIL CASES FOR DEBT

AN ACT to amend Chapter 121 of the Revised Code of the State of Delaware relating to Justices' Jurisdiction in Civil Cases for Debt.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (two-thirds of all the members elected to each House concurring therein):

Section 1. That Chapter 121 of the Revised Code of the State of Delaware be and the same is hereby amended by striking out 4004 Section 1 thereof and by inserting in lieu thereof the following to be known as 4004 Section 1.

4004. Section 1. JURISDICTION; TERRITORIAL; SUBJECT MATTER; AMOUNT: The justices of the peace shall severally have jurisdiction, within their respective counties, of all causes of action arising from obligation, or express or implied promise, or contract, for the payment of money, render of rent, or delivery of produce, chattels, goods, wares or merchandise; or contract, or agreement, for personal labor, hire or service; or for any penalty, or forfeiture, incurred under the provisions of any Statute, or of any by-law, or ordinance, authorized by Statute; where the matter in demand shall not exceed Five Hundred Dollars ($500.00) ; and a penalty in any obligation, or contract, exceeding that sum, shall not exclude it from this jurisdiction, if the sum actually due thereon be within it. The interest also due on any cause of action within this jurisdiction, may be added, although the judgment, with interest so added, shall exceed Five Hundred Dollars ($500.00).

Section 2. That Chapter 121 of the Revised Code of the State of Delaware, be and the same is hereby further amended by striking out 4009 Section 6 and inserting in lieu thereof the following to be known as 4009 Section 6.

4009. Section 6. HEARING; TIME OF; ADJOURNMENTS; FIRST, OF COURSE; OTHERS ON OATH &c; COSTS UPON ADJOURNMENT, WHEN; SPECIAL BAIL, UPON ADJOURNMENT IN FORTHWITH SUMMONS CASES; FORM; WHEN DISCHARGED; WHEN PROCEEDINGS AGAINST SPECIAL BAIL; SCIRE FACIAS UPON; SERVICE OF; JUDGEMENT BY DEFAULT, WHEN; VERIFICATION OF RETURN; CONTENTS OF VERIFICATION; PROCEDURE UPON APPEARANCE; JUDGMENT; AMOUNT OF:- The time appointed in a summons for the defendant's appearance shall be the day for hearing the cause; but the hearing may be adjourned to some other day not exceeding fifteen days distant ; and so from time to time, as may be necessary for a fair trial; and the justice shall fix the time of adjournment, so as to bring the cause to as speedy a trial as the circumstances will admit.

But the justice shall grant one adjournment to the defend- ant, of course, (subject to the following proviso), and other adjournments to either party, if it appear to his satisfaction, by the oath, or affirmation, of the party applying for it, or otherwise, that he is not prepared for trial, and that his want of preparation is not owing to design, or to not using due diligence; and after a second adjournment, the party applying for a further adjournment, shall pay the costs accruing on the day of such application, unless the justice shall make a special order that they, or any part of them, shall abide the result of the cause:

Provided, that in case of a summons made returnable "forthwith," the justice may refuse to grant any adjournment, on the defendant's application, unless he will give special bail as follows: "A. B. becomes special bail for C. D., the defendant in this action.

(Signed) A. B."

Special bail shall be discharged if the defendant appear, or is surrendered before the justice on the day to which the cause is adjourned, and pays and satisfies any judgment that shall be rendered against him in such proceedings.

If special bail be not so discharged, and it appear, by the return upon an execution, that goods sufficient to satisfy the judgment cannot be found, proceedings may be had against the bail.

This proceeding shall be by scire facias in the form pre- scribed by Section 36.

The scire facias must be served on the bail (as provided in respect to service of a summons) at least four days before its return; and, if so served, or if it appear by the return to two successive writs of scire facias, that service cannot be made as aforesaid, the justice may proceed to give judgment against him by default, unless he appear; the returns to the writ, or writs, of scire facias, being first verified by affidavit.

The affidavit shall state, in substance, that the Constable has made diligent search for the defendant in the scire facias, and cannot find him, nor hear that he has any place of abode in the county. If the defendant appear, the cause shall proceed as in other cases; but a judgment against him may be for the full amount of the original judgment against his principal, inclusive of interest and costs, though that should exceed Five Hundred Dollars ($500.00).

Section 3. That Chapter 121 of the Revised Code of the State of Delaware, be and the same is hereby further amended by striking out 4014 Section 11 thereof and by inserting in lieu thereof the following to be known as 4014 Section 11.

4014. Section 11. SET-OFF; WHEN TO BE PLEADED; ENTRY OF; RESULT OF NOT PLEADING; WHEN SET-OFF EXCEEDS FIVE HUNDRED DOLLARS, PLEADING OF OPTIONAL; WHEN PLEADED, PROCEDURE UPON:- In every action before a justice of the peace, within his jurisdiction, it shall be incumbent on the defendant, if he has against the plaintiff any account, demand, or cause of action, cognizable before a justice of the peace, to bring it forward and plead it as a set-off; and the justice shall enter on his docket the nature and amount of such counter-claim; and any defendant, neglecting to do so, shall, if the action against him be prosecuted to judgment, lose such account, demand, or cause of action, and be forever barred from recovering the same.

And if the defendant shall have any such account, demand or cause of action, against the plaintiff, exceeding Five Hundred Dollars ($500.00), he may bring it forward and plead it as a set-off as aforesaid, or not, at his pleasure, and shall not, by neglecting so to plead it, lose such cause of action.

If the defendant shall plead a set-off exceeding Five Hundred Dollars ($500.00), and it shall be found on the trial, that there is any sum due him for the plaintiff, judgment shall be given against the plaintiff, in his favor, for such sum, provided it does not exceed Five Hundred Dollars ($500.00) ; and, if it exceeds Five Hundred Dollars ($500.00), that fact shall be stated on the record, and judgment shall be given for costs for the defendant, who shall be at liberty to prosecute such cause of action in court; or such defendant may remit the excess above Five Hundred Dollars ($500.00), and take judgment for that sum.

Section 4. That Chapter 121 of the Revised Code of the State of Delaware, be and the same is hereby further amended by striking out 4018 Section 15 thereof and by inserting in lieu thereof the following to be known as 4018 Section 15.

4018. Section 15. JUDGMENT ON; LIMIT OF AMOUNT; NOTE FILED:- To an obligation for the payment of any sum not exceeding Five Hundred Dollars ($500.00), there may be annexed a warrant, duly executed, either as a part of the obligation; or otherwise, authorizing any justice of the peace to enter judgment thereon, without process; upon which authority, an action may be docketed at the suit of the obligee, or his executors, administrators, or lawful assigns, against the obligor, and judgment rendered for the principal and interest and costs: provided, that such judgment shall not be for more than Five Hundred Dollars ($500.00), exclusive of interest and costs; and provided also, that the obligation and warrant shall be filed with the justice, and be a part of the record.

Section 5. That Chapter 121 of the Revised Code of the State of Delaware, be and the same is hereby further amended, by striking out 4036, Section 33 and by inserting in lieu thereof the following to be known as 4036 Section 33.

4036. Section 33 DOCKETING OF APPEAL; WHERE; WHEN; HOW; SUMMONS ON; WHEN RETURNABLE; PROCEEDINGS ON APPEAL; WHEN TRIAL HAD; WHO PLAINTIFF ON APPEAL; MUTUAL DEMANDS TRIED ON; AMOUNT OF JUDGMENT UPON:- It shall be the duty of the appellant to have the appeal entered in the Superior Court of the County where the judgment was given on or before the first day of the term next after the appeal; and for this purpose, to deliver a duly certified transcript of all the docket entries in the case to the Prothonotary, who shall file the same, after endorsing thereon the day of receiving the same, and set down the appeal on his docket, with its date, and time of filing the transcript; and shall issue a summons to the sheriff, or if he is interested, to the coroner, for summoning the respondent to appear and answer the appeal.

The summons, if issued in vacation, shall be returnable on the first day of the next term; if issued in term time, it shall be returnable forthwith. When the appeal is entered, the Court shall have jurisdiction and take cognizance thereof, and the pleadings and proceedings thereafter shall be as in causes commenced in the said Court; but the trial shall be had at the first term, unless the Court shall, for cause, continue the case. If the judgment appealed from, is for a defendant for any sum, he shall be plaintiff in the appeal and file the declaration; and in the appeal each party may make demands against the other, and the jury by their verdict may find a sum either for plaintiff, or defendant, but not for an amount exceeding Five Hundred Dollars ($500.00), exclusive of interests and costs, unless he shall have claimed more than that sum before the justice; and judgment shall be rendered accordingly.

Section 6. That Chapter 121 of the Revised Code of the State of Delaware, be and the same is hereby further amended by striking out 4043 Section 40 and by inserting in lieu thereof the following to be known as 4043. Section 40.

4043. Section 40. ATTACHMENT IN LIEU OF SUMMONS; PROCEEDINGS BY; AFFIDAVIT; CONTENTS OF; FORM OF WRIT: The proceeding by attachment, instead of summons shall be as follows:

On an affidavit made and filed by the plaintiff, or any credible person for him, that the defendant is justly indebted to the said plaintiff in the sum of (stating a sum not exceeding Five Hundred Dollars ($500.00) and has absconded, or is as he believes, about to remove himself, or his effects out of the State, with intent to defraud his creditors, or intentionally conceals himself so that process of summons cannot be served on him, or is a non-resident of the State, (as the case may be) the justice shall issue a writ of attachment as follows : If County, SS.. The State of Delaware, To any constable of said County, greeting: We command you to attach the goods and chattels, rights and credits of A. B., in order to make good to C. D., a cause of action wherein the sum of is demanded; and that you summon any garnishees of the said A. B. found in your bailiwick, to appear before one of our justices of the peace for the County aforesaid, at his office in on the day of 19...., at o'clock in the , to answer what goods, chattels, rights, credits, or effects, of the said A. B. may be in their hands respectively ; and have you then there this warrant, with your doings hereon duly certified.

Witness the hand and seal of the said

L. S. Justice, the day of

19...."

Section 7. That Chapter 121 of the Revised Code of the State of Delaware, be and the same is hereby further amended by striking out 4053 Section 50 and by inserting in lieu thereof the following to be known as 4053 Section 50. 4053. Section 50. MECHANICS' LIENS: Justices of the Peace shall have jurisdiction in the matter of mechanics' liens, for work and labor to any amount less than Five Hundred Dollars ($500.00), as provided by Section 8 of Chapter Seventy nine.

Approved May 14, A. D. 1925.