CHAPTER 193
LIENS
AN ACT to amend Chapter 79 of the Revised Code of the State of Delaware relating to the Lien of Livery Stable Keepers and Garage Owners. Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met: Section 1. That Chapter 79 of the Revised Code of the State of Delaware be and the same is hereby amended by striking out all of 2863 Sec. 21 and 2864 Sec. 22, and inserting in lieu thereof the following new Sections:
2863. Sec. 21. WHEN LIEN ARISES; WHAT UPON; DETEN- TION; SALE; ADVERTISEMENT; APPLICATION OF PROCEEDS; WHERE KEEPER HAS PARTED WITH POSSESSION OF PROPERTY; PROCESS FOR RECLAMATION; RIGHTS OF KEEPER THEREUPON; DISPOSITION OF SURPLUS; WHEN OWNER MAKES DEMAND FOR PROPERTY, PROCEDURE OF KEEPER TO ENJOY LIEN: Any Hotelkeeper, innkeeper, garage owner or other person who keeps a livery or boarding stable or garage, and for price or reward at such stable or garage, furnishes food or care for any horse, or has the custody or care of any carriage, cart, wagon, sleigh, motor vehicle or other vehicle, or any harness, robes, or other equipments for the same, shall have a lien upon such horse, carriage, cart, wagon, sleigh, motor vehicle or other 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 hereinafter contained, after the expiration of thirty 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 or garage, to the highest and best bidder or bidders therefor, first giving at least ten days' notice of such sale by hand-bills 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 or garage 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 or garage 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 thereupon 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 or garage; and such constable shall forthwith, at any place within such county, seize and deliver such property pursuant to such war- rant; and thereafter the keeper of such stable or garage 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 or garage has parted with its possession or custody and before such seizure thereof, to sell the same in manner afore- said, after giving notice as aforesaid, and may apply the money arising from such sale in manner 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 or garage, 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 or garage, such lien shall be lost unless the keeper of such stable or garage shall, within the space of thirty days from the making of such demand upon him, sell such property under and in accordance with the provisions hereinbefore contained.
2864. Sec. 22. REMEDY OF OWNER; REPLEVIN; WHEN SUED OUT; BY AND AGAINST WHOM; BOND OF PLAINTIFF; FORM OF; PLEAS:- 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 or garage, as aforesaid, with damages and costs for the detention thereof, at any time before sale thereof as aforesaid, against the keeper of such stable or garage, at the suit of the person or 'persons .having the right, aside from any lien under the provisions of Sections 21 to 27, inclusive, of this Chapter, 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 said sections, 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 ac- companied 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 purposes of said sections, as the Court, by general rule or upon special application, shall allow.
Approved April 2, A. D. 1925.