JUSTICES' JURISDICTION IN TRESPASS, REPLEVIN AND DETINUE CASES.
AN ACT to amend Chapter 122 of the Revised Code of Delaware in relation to the jurisdiction of Justices of the Peace.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:
Section 1. That Chapter 122 of the Revised Code of the State of Delaware be, and the same is hereby amended by the repeal of the title of said Chapter and by inserting in lieu thereof the following: Justices' jurisdiction in trespass, replevin and detinue cases.
Section 2. That said Chapter 122 of the Revised Code of the State of Delaware be, and the same is hereby further amended by adding the following new sections after 4065 Section 4, which shall be styled 4065 A., Section 5, 4065 B., Section 6, 4065 C., Section 7, 4065 D., Section 8, 4065 E., Section 9, 4065 F., Section 10, 4065 G., Section 11, 4065 H., Section 12, 4065 I., Section 13, 4065 J., Section 14.
4065 A. Section 5. REPLEVIN; DETINUE: Justices of the Peace shall severally within their respective counties have concurrent jurisdiction with the Superior Court of actions of replevin and detinue where the value of the property in controversy does not exceed the sum of Two Hundred Dollars ($200.00).
4065 B. Section 6. MODE OF PROCEEDING; WRIT; HOW ISSUED; DATED; DIRECTED; FORM OF: The proceeding shall be by writ. The writ shall be issued by the Justice under hand and seal, dated the day it is issued and directed to any constable of the County, describing the goods to be replevied or taken, and the place, day and hour for the Defendant's appearance, which shall not be more than fifteen days from the date. The writ shall be of the following form:
_____________ County, ss. The State of Delaware.
To any Constable of ___________ County.
If _________ give you security to prosecute __________ complaint against _________ WE THEN COMMAND YOU that you cause to be replevied and delivered to the said ______ the following described goods and chattels to-wit:
_______ of the value of ________ dollars lawful money of the United States of America, the goods and chattels of the said __________ AND WE FURTHER COMMAND YOU that you summon the said ___________ to appear before __________, one of our Justices of the Peace, for the County aforesaid, at his office in _______, on _______ the ______ day of __________, at _________ o'clock in the ________ to answer unto the said ________ of a plea of taking and improperly detaining the said goods and chattels of the said ________ AND have you then there this writ.
WITNESS the hand and seal of the said Justice the ________ day of ________ A D.19__ .
4065 C. Section 7. WRIT; HOW ISSUED; RETURN; FORM OF:---Before service of the writ can be required the plaintiff in the writ shall enter into a bond with sufficient surety to the constable on a penal sum of double the amount of the value of the property described in said writ conditioned that he will prosecute his said complaint with effect and abide any judgment that may be entered against him; otherwise said bond to remain in full force and effect. Upon sufficient security being given it shall be the duty of the constable to whom said writ is delivered for service to serve said writ by taking possession of said property described in said writ and delivering it into the possession of the said plaintiff, unless the said defendant shall enter into a bond with sufficient surety unto the constable in a penal sum of double the amount of the value of the property described in said writ, conditioned for his appearance at the return of the writ and that he shall fully satisfy any judgment which shall be given against him, otherwise said bond to remain in full force and effect; and by procuring the said writ to the defendant and stating the substance of it, or by leaving a copy of it at his usual place of abode in the presence of some person, at least four days before the day of appearance. The service and the manner of service shall be stated in the return and a judgment by default shall not be rendered until the return is verified by the constable's affidavit in writing.
4065 D. Section 8. STATEMENT OF CAUSE: At or before the return of said writ the plaintiff shall file with the Justice issuing said writ a statement in writing setting forth all the necessary averments which the Plaintiff claims to constitute his right of action.
4065 E. Section 9. JUDGMENT; NATURE OF; WHEN FOR DEFENDANT; COSTS; HOW COLLECTED: If the defendant being duly summoned shall not appear, or if upon trial it shall be proved to the satisfaction of the Justice that the Plaintiff is entitled to the possession of the property, replevied and delivered, he shall have judgment for the possession thereof and for the costs; or if it should appear that he is entitled to the possession of a portion of the said property, replevied and delivered, he shall have judgment for the possession of the said portion of said property and the said defendant shall have judgment for the value of the other portion of said property, and each party shall pay his own costs; or if it should appear that the plaintiff is entitled to the possession of all or a portion of said property and that said property replevied was left in the possession of the said defendant by reason of a bond having been given, as hereinbefore provided for, the said plaintiff shall have judgment for the value of the property to which he is entitled to the possession, and for the costs, otherwise judgment shall be for the defendant for the value of said property replevied and for the costs. In all judgments execution may be had to levy the amount thereof.
4065 F. Section 10. REFEREE TRIAL; WHEN; REFEREES; AUTHORITY OF; HELD BEFORE; REPORT OF; JUDGMENT THEREON; SUBSTITUTES; WHEN NO REFEREE TRIAL: If the value of the property in controversy shall exceed Five Dollars ($5.00) either party may claim a trial by referee and thereupon the Justice shall appoint three judicious and impartial men of the County to try the cause. They shall be sworn or affirmed that they will "faithfully and impartially try the cause pending between the said ________ plaintiff and ________ defendant and make a true and just report thereupon according to the evidence" and shall hear the allegations of the parties and their proofs; but if either party do not appear before them they may proceed in his absence and the said referees or any two of them agreeing shall make a report under their hands and return the same to the Justice who shall give judgment according to such report. If any referee appointed shall fail to appear or serve throughout the trial the Justice may supply his place by appointing and qualifying another; but there shall be no trial by referees if the defendant has not appeared. In all other cases the Justice shall hear the case and give judgment according to the right of the matter and the law of the land.
4065 G. Section 11. REFEREES; COMPULSORY ATTENDANCE OF; HOW SUMMONED; CONTEMPT FOR NON-ATTENDANCE; PENALTY; HOW COLLECTED; WARRANT FOR COLLECTION; FORM OF: The Justice may require the attendance of referees whom he shall appoint and may issue a summons under hand and seal to a constable for summoning them to appear before him and if any referee duly summoned shall neglect to appear as required, or to be qualified and serve throughout the trial he shall, unless he show to the Justice a sufficient excuse, be adjudged to be guilty of contempt, and ordered to pay a fine of Five Dollars ($5.00) which shall be levied with costs by distress and sale of such referee's goods and chattels by virtue of a warrant by the Justice to be directed to a constable in the following manner:
___________ COUNTY, SS. THE STATE OF DELAWARE.
To any Constable of the said County Greeting:
Whereas, ___________ of __________ has been adjudged by , one of our Justices of the Peace for said County, to be guilty of a contempt in making default after due summons as a referee in a case pending before said Justice and has been ordered to pay a fine of Five Dollars ($5.00) in pursuance of the Act of Assembly in such case provided and
Whereas, the said __________ has neglected to pay the said sum, we therefore command you to levy the said sum of Five Dollars ($5.00) with ________ costs and your costs hereon by distress and sale of the goods and chattels of the said ________ upon due notice given as upon other execution process.
Witness the hand and seal of the said Justice the _______ day of ________ A.D.
4065 H. Section 12. FEES; OF WITNESSES; OF CONSTABLES; OF JUSTICE: In proceedings under Section 5 to 14 inclusive of this Chapter, witnesses shall have the same fees as for attendance before Justices of the Peace in other actions. The constable shall have the same fees for serving the writ, summoning referees and making levy upon an execution and making returns, thereof with an additional fee of One Dollar ($1.00) for serving the writ, and the Justice shall have the same fees for issuing the writ, hearing the cause and entering judgment as prescribed by Chapter 156.
4065 I. Section 13. APPEAL: Appeals shall be allowed from judgments given by Justices of the Peace in replevin and detinue cases, to the Superior Court. Such appeal shall be taken, docketed and dismissed in the same manner as is now provided by law for the taking, docketing and dismissing of appeals from Justices of the Peace in civil cases for debt.
4065 J. Section 14. JUDGMENT MAY BE FILED IN SUPERIOR COURT; WHEN; HOW; HOW ENTERED; BECOMES A
LIEN ON REAL ESTATE; How ENFORCED; RIGHTS OF ASSIGN: Any judgment entered under the provisions of Section 5 to 14 inclusive of this Chapter may be made a lien on real estate in the same manner as is provided by Section 30 of Chapter 121 of this Code.
Approved April 9, A. D. 1917.