AN ACT to amend Chapter 79 of the Revised Code of Delaware relating to Liens.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:
That 2844, Section 2, Chapter 79 of the Revised Code of Delaware be and the same is hereby repealed and the following is substituted in lieu thereof:
2844. Sec. 2. PROCEEDINGS FOR RECOVERY OF CLAIMS; SCIRE FACIAS; FORM OF; WHEN ISSUED; SERVICE OF; JUDGMENT IN DEFAULT OF AFFIDAVIT OF DEFENSE; PROCEEDINGS IN CASE OF; FILING STATEMENT WITHIN TEN DAYS OF RETURN DAY OR IN CASE JUDGMENT BE NOT ENTERED; PROCEEDINGS; EXECUTION BY LEVARI FACIAS; FORM OF: The proceedings to recover the amount of any claim as aforesaid shall be by writ 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 anything 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 ease made and provided. And have you then there this writ.
Witness (as in similar writs)
Unless the plaintiff shall direct the issuance of the writ of scire facias before the second term, after the filing of the statement aforesaid, the proceedings shall abate and all rights obtained by the filing of said statement shall cease and determine.
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 if 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 defense to the whole or part of such cause of action, and setting forth the nature and character of the same; and if the defense 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 Seire 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 commend you that without any other writ from us of the following described building -and lot 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 monies 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.)
If the proceeds received from any sale under such writ of Levari Facias shall not be sufficient to pay in full all liens, such proceeds shall be ratably divided among the persons who shall have availed themselves of the provisions of this Act without priority or preference of one over the other.