OF MECHANICS’ LIEN.
AN ACT in Relation to Mechanics’ Liens.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met, as follows, to wit:
SECTION 1. It shall and may be lawful for any person or persons having performed or furnished work and labor or material or both, to an amount exceeding twenty-five dollars in or for the erection, alteration, or repair of any house, building, or structure, in pursuance of any contract, express or implied, with the owners of such house, building, or structure, or with the agent of such owner, or with any contractor who shall have contracted for the erection, alteration, or repair of the same, and for the furnishing of the whole or any part of the materials therefor, to obtain a lien upon such building, house, or structure, and upon the ground upon which the same may be situated or erected, subject, however, to the following restrictions, limitations, and qualifications, that is to say: That no contractor who shall have contracted for the erection of any building, house, or structure, in whole or in part, or for the repair or alteration of the same, and for the furnishing of the whole or any part of the materials therefor, shall be allowed to file any statement of his claim, as is hereinafter provided, until after the expiration of ninety days from the completion of such building, house, or structure so contracted for by him; but such contractor, in order to avail himself of the benefits of this act, shall file his statement in the manner hereinafter provided within thirty days after the expiration of the ninety days aforesaid, and all other persons embraced within the provisions of this act, and entitled to avail themselves of the liens herein provided for, shall file a statement of their respective claims, in the manner hereinafter designated, within ninety days from the completion of the work and labor performed or from the last delivery of materials furnished by them respectively; and every person or persons entitled to the benefits conferred by this act, and desiring to avail himself, herself, or themselves of the lien herein provided for, shall, within the time hereinbefore specified, file a statement of his, her, or their claims in the office of the Prothonotary of the Superior Court in and for the county wherein such building or structure is situated. The said statement shall contain and set forth:
First. The names of the party, claimant and owner, or reputed owner of the building, house or structure, and also of the contractor, and whether the contract of the claimant was made with such owner or his agent or with such contractor.
Second. The amount or sum claimed to be due, the nature and kind of the work and labor done, or a bill of particulars of the kind and amount of materials furnished.
Third. The time when the said work and labor or the furnishing of said materials was commenced and finished.
Fourth. The locality of the building, house or structure, with such description as may be sufficient to identify the same.
Fifth. That the said work and labor were performed, or said materials were furnished, on the credit of the said building, house or structure.
Sixth. That the amount of the said claim exceeds twenty-five dollars, and that the same has not been paid to the claimant.
The claimant shall make affidavit to the truth and correctness of the said claim and of' die facts stated therein. Any judgment obtained upon such claim, as hereinafter provided, shall become a lien upon such building, house or structure, and upon the ground upon which the same is situated, erected or constructed, and shall relate back to the day upon which said work and labor was begun, or the furnishing of said material was commenced, and shall take priority accordingly. In every case in which one lien claim for work and labor or materials shall be filed by the same person or persons against two or more buildings, houses or In ease of separate structures owned by the same person or persons, for building, altering or repairing two or more buildings or structures owned by the same person or persons, the claimant shall, at the time of filing such joint claim, designate the amount which he claims to be due to him on each of such buildings, houses or structures.
Nothing herein contained shall be construed to impair or otherwise affect the right of any person to whom any debt may be due for work and labor done or materials furnished, to any personal action against the owner or contractor of such building, house or structure, to recover the amount of such nor shall anything herein contained be so construed as to render property liable to liens under this act for repairs, alterations or additions, when the same has been altered, added to or repaired by or at the instance of any lessee or tenant, without the written consent of the owner or owners, or his, her or their duly authorized agent first had and obtained : Provided, that the owner or owners of any building, house or structure built, repaired or altered by any contractor who shall have contracted to build, erect, alter or repair the same, and furnish the materials therefor, shall be, and he is hereby authorized and empowered, in case any liens shall be entered under this act upon the said building, house or structure upon any claim or claims for materials which, by the terms of his contract, the said contractor was bound to furnish, by any person or persons other than such contractor, to retain and withhold from such contractor so much of the moneys to be paid to him in pursuance of the contract made with such contractor, as may be necessary to liquidate and discharge such liens; and in case judgment be recovered by such lien creditors, then, in that event, to apply the said moneys' or such .part thereof as may be necessary to satisfy the said judgment, to the payment and satisfaction thereof, and such payment shall be considered and treated as a payment pro tanto to the said contractor towards the moneys provided to be paid by the said contractors: and provided further, that no person or persons embraced within the provisions of this act, and entitled to avail themselves of the lien herein provided for, shall be considered as waiving the same by granting a credit, or receiving notes or other secureties, unless the same be received as payment, or the lien expressly waived, but the sole effect thereof 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.
SECTION 2. The proceedings to recover the amount of any claim as aforesaid shall be by a write of scire facias, in the following form, to wit:
______ County, ss. The State of Delaware.
To the Sheriff of said county, greeting :
Whereas ______ hath filed a claim in our Superior Court for the county of ________, against ________ for the sum of ________, (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 _______ : now we command you that you make known to said _______, and to 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 ______ 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.)
No such Scire Facias shall be issued in any case within ten days previous to the return day thereof. The said writ shall be served in the same manner as other writs of Scire Facias, upon the defendant therein named, if he can be found within the county; and a copy thereof shall be left with some person residing in the building, if occupied as a place of residence; but of 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 plaintiff on the last day of the term to which said process is returnable, notwithstanding appearance by the defendant, unless said defendant shall have previously filed in the cause an affidavit 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 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, 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 log 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 ________ which ________ lately in our Superior Court for the county aforesaid, before the judges thereof, recovered against _______ to be levied of the said building and lot of ground, as also the interest thereon from the _______ day of _______, A. D. _______, and also the sum of ________ for the cost which accrued thereon, according to the form and effect of an act of the General Assembly in such cases made and provided, and have you there moneys before our Judges at ________, at our Superior Court in and for the county of ________ there to be held on the ________ day of ________ 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 "The Mechanics’ Lien Docket," in which he shall make an entry of each claim so filed as aforesaid, setting down therein the names of the parties, plaintiff and defendant, the amount claimed, the day upon which the claim is filed, and of the issuing of the Scire Facias, a description of the property against which the 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 judgment (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.
SECTION 4. The provisions of this act are hereby declared to extend to work and labor performed and furnished, or materials furnished in plumbing, gas-fitting, paper-hanging, wharf 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.
SECTION 5. This act shall also extend to work and labor or materials performed or furnished in the construction, alteration, furnishing, rigging, launching or repairing of any ship or vessel within this State: Provided, nevertheless, that no bill of particulars and affidavit as aforesaid shall (be) filed more than four days after such ship or vessel has been launched, rigged, furnished and ready for sea, or after such repairs have been completed. And the same shall contain the name of the ship or vessel, or a description thereof sufficient for identification. Upon filing said bill of particulars and affidavit, under the provisions of this section, the prothonotary may issue a writ of attachment, directed to the sheriff of the county in which the ship or vessel may be, commanding the sheriff to attach the defendant by such 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 and take possession of the said ship or vessel, and have the same inventoried and appraised, and shall be answerable therefor. If the defendant in the attachment shall at any time before judgment appear and enter into recognizance to the plaintiff in said writ of attachment in a reasonable penalty, and with surety to be approved by the Prothonotary, with condition to pay the condemnation money, and all costs, or otherwise abide the judgment 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.
SECTION 6. On the return of said writ of attachment or summons, the court may, upon petition of any person or persons claiming to have performed or furnished work or labor or materials at the request of the plaintiff or plaintiffs in said attachment, appoint three suitable persons to audit and determine the claim or claims of the said plaintiff or plaintiffs, and also the 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 knowledge. They shall give ten days’ notice to the parties of the time and place of their first meeting by advertisement, posted at the Court House door, and at least five other public places in the county. Their subsequent sittings shell be by adjournment duly made and publicly announced. They may investigate any claim presented in any form they may judge best, and may examine any of the parties upon oath or affirmation. On receipt of the proceeds of the sale of the property attached or against which judgment is obtained or any part thereof, the auditors shall calculate and settle the proportions and dividends due the several parties, and shall make report to the next term of the court after such appointment, and upon confirmation of the report pay over to the several parties their respective share of the proceeds according to such apportionment. The court may hear exceptions to and correct such account and report, either in the calculations, dividends, apportionment, or otherwise.
SECTION 7. If the attachment shall not have been dissolved as hereinbefore provided, judgment may be given for the plaintiff in the attachment, at the second term after issuing the writ, as in other cases of attachment, and thereupon the court may 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 any surplus after paying costs, shall be returned to the defendant or his executors, administrators or assigns. All sales made under this act shall be good against the defendant, his executors, administrators or assigns.
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 7, 1861; Chapter 464, Volume 13, of the Laws of Delaware, entitled "An act to amend Chapter 117, Volume 12, of the Laws of 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 7, 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 within the State of Delaware,’" passed at Dover, March 7, 1861, amended February 24, 1869, amended 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 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 and 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 26, 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 and now pending, under any of the acts herein repealed, shall abate by reason of this act, but the said acts herein repealed shall be and the same are hereby maintained and continued in force-so far as may be necessary to preserve and maintain the said suits, and to complete and carry into effect any proceedings commenced thereunder as fully and completely as though this act had not been passed: And provided also, That this act shall be treated and considered as applying to and embracing all contracts heretofore made for work and labor performed or materials furnished 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, 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.