OF THE COMMENCEMENT OF ACTIONS. CHAPTER 102. TITLE SIXTEENTH. OF CIVIL ACTIONS IN GENERAL. CHAPTER 102. Of the commencement of actions. Chap. 192, vol. 11; Chap. 270, vol. II; Chap 211, vol. 12; Chaps. 179 and 180, vol. 15. CHAPTER 103. Of bail. Chap. 531, vol. 16. CHAPTER 104. Of attachments. 532, vol. 16. Chap. 607, vol. II; Chap. 182, vol. 15; Chap. CHAPTER 105. Of the survivency of actions. Chap. 31, vol. 13. CHAPTER 106. Of pleading and practice in civil actions. Chap. 220, vol. 18; Chap. 219, vol. 17. CHAPTER 107. Of witnesses and evidence. Chap. 598, vol. 11; Chap. 777, vol. 19; Chap. 30, vol. 13; Chap. 449, vol. 11; Chaps. 536 and 537, vol. 16. CHAPTER 108. Of oaths. Chap. 201, vol. 12; Chap. 14, vol 13. vol. 16; Chap. 538, vol. 16; Chap. 94, vol. 14; Chap. 680, vol. 18; Chap. 561, vol. 14; Chap. 542, vol. 16; Chap. 221, vol. 18; Chap. 451, vol. 11; Chap. 186, vol. 15; Chap. 144, vol. 16. CHAPTER 112. Of defects in pleading and the amendment thereof. CHAPTER 113. Of bills of exception cases, stated and reserved questions. CHAPTER 114. Of costs in civil actions. Chap. 623, vol. 17. Official notices. Chap. 624, vol 17; Chap. 193, vol. 15. SECTION 1. Every writ used for the commencement of an action, writs; date; shall bear date on the day it was issued, and shall be returnable on return day. the first day of the term next thereafter. SEC. 2. A writ of summons may be served on the defendant by service. stating the substance of it to him personally, or by leaving a copy of it at his usual place of abode, in the presence of some white adult person, six days before the return thereof. The officer serving a summons shall state in his return the time and manner of service. Return. default. SEC. 3. If the defendant in a writ of summons shall not appear Judgment by at the return day thereof, and it shall appear by the return that he' was duly summoned, it shall be lawful for the plaintiff, having filed OF THE COMMENCEMENT OF ACTIONS. CHAP. 102. ADDITIONAL ACTS. his declaration, to take judgment thereon for default of appearance, according to the rules and practice of the court. How taken off, But if the defendant shall, at or before the next term after such judgment, by affidavit deny notice, or knowledge, of such suit before the judgment was rendered, and shall allege that there is a just or legal defence to the action, or some part thereof, such judgment shall be taken off and he shall be permitted to appear; any execution which may have been issued thereon to remain cautionary. Scire facias. Capias. Amicable actions. Actions against delinquent officers. Writ of summons left at the usual place of business sufficient. In civil cases, by consent of parties matters of fact may be tried by the Court. SEC. 4. In every case in which a writ of scire facias may by law be issued, it shall be served and returned in the same manner as is provided in case of an original summons; and judgment for default of appearance may be taken in like manner, unless it be otherwise specially provided. SEC. 5. A writ of capias ad respondendum is served by arresting the defendant, but he shall be discharged upon giving sufficient bail. SEC. 6. It shall be lawful for any persons willing to become parties to an amicable action, to enter into an agreement in writing for that purpose, either personally or by their agents, or attornies; and on filing such agreement with the prothonotary, he shall docket the suit, and from the time of such entry the action shall be deemed to be depending in the same manner as if the defendant had appeared to a summons issued against him by the plaintiff. SEC. 7. Action may be brought in the name of the State against any officer for money received by, or legally chargeable to him, for fines, forfeitures, or fees, appertaining either to the funds of the State, or to the school fund. CHAPTER 192, VOL. 11, LAWS OF DELAWARE. AN ACT MAKING ADDITIONAL PROVISION FOR THE SERVICE OF SECTION 1. That whenever suit shall be brought against any person or persons not residing in this State, but doing business therein either by a branch establishment or agency, it shall be sufficient service of a writ of summons to leave a copy thereof with any agent, or at the usual place of business of such person or persons, or his or her, or their, agent ten days before the return thereof. Passed ot Dover, February 10, 1855. CHAPTER 270, VOL. 11, LAWS OF DELAWARE. AN ACT IN RELATION TO THE TRIAL OF ISSUE OF FACT IN THE SECTION 1. That in all civil causes where matters of fact are at issue, if the parties agree, such matters of fact shall be tried by the court, and judgment rendered upon their decision thereon, as in cases tried by a jury under the present practice. Passed at Dover, March 1, 1855. OF THE COMMENCEMENT OF ACTIONS. CHAP. 102. ADDITIONAL ACTS. CHAPTER 211, VOL. 12, LAWS OF DELAWARE. AN ACT RELATING TO ARRESTS IN CIVIL CASES IN THE STATE OF DELAWARE. arrest on mesne tracted without SECTION 1. That from and after the passage of this act, it shall not be lawful, at the Non-resident suit of any non-resident, to arrest and hold to bail on mesne process any person who plaintiff not to may be a non-resident of this State at the time of issuing such process against such process non-resident defendant person or persons, for any debt contracted without the limits of this State. If any such for debt connon-resident shall be so arrested, he may apply by petition in writing to any Judge of the State. this State, setting forth his residence and the State in which said debt was contracted, Remedy of nonresident defendand it shall be the duty of said Judge, on the production of satisfactory proof that the ant in case of plaintiff was a non-resident at the time of issuing the process, and also that the peunlawful arrest. titioner is a non-resident of this State, and that the debt on which said petitioner was arrested was not contracted in this State, to discharge said petitioner from custody; but this act shall not be construed as affecting in any degree the law of attachment. SEC. 2. That “An act relating to arrests in civil cases in the State of Delaware," Delaware Laws, passed at Dover, March 3d, 1853, be, and the same is hereby, repealed, made null vol. 11, p. 112. and void. Passed at Dover, February 4, 1862. CHAPTER 179, VOL. 15, LAWS OF DELAWARE. AN ACT IN RELATION TO THE SERVICE OF PROCESS ON FOREIGN Act of March 3d, 1853, repealed. the State. SECTION 1. That in any case where any insurance company, not incorporated by Action against this State, shall have an agency, transact any business, or issue policies of insurance foreign insurance companies in upon any property or life, within any county in this State, it shall and may be lawful any county of to institute and commence an action against such insurance company in such county, and the original writ may be served upon the president, agent, chief or other clerk, or Process, how upon any director or agent of such company, within such county, and such service shall served. be good and valid in law, to all intents and purposes. For the purpose of this act the Who to be receiving of a premium of insurance for transmission to such company, or otherwise, deemed an agent. constitute the receiver thereof their agent. Passed at Dover, February 25, 1875. CHAPTER 180, VOL. 15, LAWS OF DELAWARE. AN ACT RELATING TO ARRESTS IN CIVIL ACTIONS. State unless SECTION 1. That hereafter, no writ of capias ad respondendum shall be issued No capias ad against any citizen of this State, in any civil action unless the plaintiff therein, or if respondendum to issue against there be more than one, some one or more of the plaintiff's, shall have made a citizens of the written affidavit, and filed the same in the office of the prothonotary of the Superior affidavit be filed. Court of the county out of which the writ is to issue, stating, that to the best of his or their belief, the defendant has absconded, or is about to abscond from the place of his What to state. usual abode; or that the defendant is justly indebted to the plaintiff, in a sum exceeding fifty dollars, and that he verily believes the said defendant has secreted, conveyed away, assigned, settled or disposed of, either money, goods, chattels, stock, securities for money, or other personal estate or real estate of the value of more than one hundred dollars, with intent to defraud his creditors, and shall, moreover, in such affidavit, Proviso. OF BAIL. CHAPTER 103. specify and set forth the supposed fradulent transactions. Provided that this act shall Not applicable, not apply where the action shall be for libel, slander or injury to the person or property, accompanied by violence, if any affidavit of the cause of action be filed with the prœcipe. when. Chap. 530, vol. 16. [SEC. 2. That the Superior Court in term time or any judge in vacation, upon the Superior Court, petition of any person arrested, and reasonable notice in writing to the party or any judge, in whose favor the process issued, his attorney or agent, shall investigate the allegapower to investigate allegations. tions contained in any affidavit made and filed under the foregoing section, that the defendant has absconded or is about to abscond from the place of his usual abode, and the allegations and specifications of fraud contained in such affidavit, and if upon such investigation, the court or judge shall consider that there was not or is not suffi cient cause for the arrest, the person arrested shall be discharged, and the plaintiff Power to enforce shall pay the costs. The court or judge shall have power to make and enforce all necessary and proper orders in the premises.] When persons arrested shall be discharged. orders. Passed at Dover, March 3, 1875. How taken. Amount to be indorsed. Amount; how fixed. SECTION 1. Bail shall be taken by the joint and several bond of the defendant and his bail to the sheriff, or officer to whom the writ is directed, and his assigns, in the sum indorsed on such writ, with condition, in substance--that if the defendant shall appear before the court mentioned in such writ, at the place and time of the return thereof, to answer as therein required, the said bond shall be void. SEC. 2. The sum in which bail is demanded shall be indorsed on the writ. The Superior Court, or any judge thereof, may, on complaint. fix the amount of bail, or discharge the defendant on common bail. OF BAIL. CHAPTER 103. affidavit. The plaintiff, or his agent, or attorney, if residing in the county, Notice. shall have notice of the time and place of hearing such complaint, Plaintiff's and the plaintiff's affidavit shall be received to show cause of bail. When a defendant is discharged on common bail, his appearance shall be entered on the return of the process. When a bail bond is Appearance on given, the defendant cannot appear without giving special bail to the On special bail. action, unless by order of court, or with the plaintiff's consent. common bail. be assigned; SEC. 3. The sheriff or officer to whom a bail bond is given, or Bail bond shall his executors, or administrators, shall, upon request, assign it to the when; how. plaintiff, or his executors or administrators, by indorsement under seal, attested by one or more witnesses. By special order of court the assignment may be to a person Specially. for whose use the action is brought, or his executors, or administra tors. on attachment bailable, ex SEC. 4. A person arrested by virtue of any attachment for con- Persons arrested tempt (except attachments for non-performance of decrees, or non- of contempt payment of money, or returnable forthwith,) shall be admitted to cept, &c. give bail, and all the foregoing provisions shall apply to the case. Any judge of the court awarding the attachment may fix the amount of bail. If no sum be indorsed on the writ, the officer executing it shall Sum. set down a reasonable sum. bonds; where SEC. 5. Action upon a bail bond must be brought in the same Actions on bail court as the original action; and when the bond is duly assigned, brought; how. the action shall be in the name of the assignee, or his executors, or administrators. The court may grant to the bail and to the parties Relief of bail, respectively in the original action, such relief, upon such terms, and in such manner as shall be just and equitable. chancery SEC. 6. Proceedings against bail, on a bail bond taken on an at- Proceedings tachment issued out of the Court of Chancery, shall be by petition against bail. to the said court, which shall decree thereon according to equity. for in SEC. 7. Insufficient bail shall be regarded as no bail. A sheriff, Liability of or officer, taking insufficient bail, shall be deemed to have volun-sufficient bail. tarily permitted the defendant to escape, and shall be liable accordingly. One or more citizens of the county, of ability to answer the sum in which bail is required, shall be sufficient bail. SEC. 8. Although bail be taken, the court shall, upon application, Rule to bring the grant a rule upon the sheriff, or officer, to bring the body of the de- body into court. fendant into court, in the same manner as if no bail were taken; but it the bail be sufficient, and the sheriff, or officer, will assign the bail bond, no further proceeding shall be had against him, if he cannot find the defendant so as to comply with the rule. SEC. 9. It shall be lawful for any defendant, committed to prison Person comby virtue of a capias ad respondendum, * * * mitted may give to bail. enter special bail to the action at any time before final judgment is obtained against him. [And also for any person who is now or may hereafter be im- Chap. 95, vol. 12. |