OF ATTACHMENTS. CHAPTER 104. any overplus, after paying all the claims allowed and costs, shall be Surplus. returned to the defendant, or his executors, administrators, or as signs. SEC. 17. Any surety of the defendant by recognizance, bond, bill, Surety may assumption or otherwise, shall be entitled to prove the claim, aris-prove claim. ing on such liability, before the auditors, and to share in the distri bution. SEC. 18. No second writ of domestic attachment shall issue No second writ, unless, &c. against the defendant, unless the first shall not be executed, or shall be quashed, or dissolved by the court, or discontinued by the plaintiff with consent of a majority of the creditors: and if the Not stayed by plaintiff shall die, or be satisfied of his debts, it shall not stop the death, or payproceedings; but the name of his executor, or administrator, or of any other creditor, may, on suggestion of the fact, be substituted in his stead. ment. ATTACHMENT; SEC. 19. A writ of foreign attachment may be issued against any FOREIGN person not an inhabitant of this State, after a return to a summons, when to be issued or capias, issued and delivered to the sheriff, or coroner, ten days before the return thereof, showing that the defendant cannot be found, and proof, satisfactory to the court, of the cause of action; or upon affidavit made by the plaintiff, or some other credible person, and filed with the prothonotary, that the defendant resides out of the State, and is justly indebted to the said plaintiff in a sum exceeding fifty dollars. [And where there are two or more defend- Chap. 533, vol.16. ants, one a resident of the State but without available means to shall issue pay the plaintiff's claim, the fact may be so stated in such against nonaffidavit, and the attachment thereon may issue against the fendant. non-resident defendant or defendants with the same effect as if such non-resident defendant or defendants was or were the only defendant or defendants in the cause.] When process resident de SEC. 20. The said writ shall be framed, directed, executed and Proceedings returned, and like proceedings had, as in the case of a domestic attach-upon. ment except as to the appointment of auditors and distribution among creditors; for every plaintiff in a foreign attachment shall have the benefit of his own discovery, and, after judgment, may proceed, by order of sale, fieri facias, capias ad satisfaciendum or otherwise, as on other judgments. Provided, that before receiving any sum under such judgment, the plaintiff shall enter into recognizance as required by section 13 preceding. SEC. 21. All sales under this chapter shall be good against the Force of sale. defendant, his executors, administrators and assigns; and if action be brought against any officer, or other person, acting under the authority of this chapter, he may, under the general issue, give this chapter in evidence in his justification. Foreign attach ment may issue against a corporation; where, Proceedings; what. Judgments. When obtained. Proviso Security. Power of gate allegation OF ATTACHMENTS. CHAP. 104. ADDITIONAL ACTS. CHAPTER 182*, VOL. 15, LAWS OF DELAWARE. A SUPPLEMENT TO CHAPTER 104 OF THE REVISED STATUTES OF SECTION 1. A writ of foreign attachment may be issued out of the Superior Court of this State against any corporation, aggregate or sole, not created by or existing under the laws of this State, upon affidavit made by the plaintiff or any other credible person, and filed with the prothonotary of said court, that the defendant is a corporation not created by, or existing under the laws of this State, and is justly indebted to the said plaintiff in a sum of money, to be specified in said affidavit, and which shall exceed fifty dollars. SEC. 2. The said writ shall be framed, directed, executed and returned, and like proceedings had as in the case of a foreign attachment issued under the chapter to which this act is a supplement, except that attachments to be issued under this act shall be dissolved only in the manner hereinafter provided. SEC. 3. In any attachments to be issued under this act, judgment shall be given for the plaintiff at the second term after the issuing of the writ, unless the defendant shall have caused an appearance by attorney to be entered, in which case the like proceedings shall be had, as in suits commenced against a corporation by summons: Provided, however, if the defendant in the attachment, or any sufficient person for him, shall, at any time before judgment, give security for the payment of any judgment that may be recovered in said proceedings with costs, then the garnishees and all the property attached, shall be discharged, and the attachment dissolved, and like proceedings be had as in other cases of foreign attachment under the act to which this is a supplement, in which the attachment has been dissolved by special bail. Such security shall be approved, and the form and amount thereof determined by the court in term time, or by any judge thereof, in vacation: but the court may prescribe the form of such security by general rule in that behalf. Passed at Dover, March 2, 1857. Amended March 17, 1875. CHAPTER 532, VOL. 16, LAWS OF DELAWARE. AN ACT IN RELATION TO ATTACHMENTS OF PROPERTY UNDER SECTION I. The Superior Court, in term time, or any judge in vacation, upon the Superior Court, petition of any defendant or tenant whose property, rights or credits may be attached Judge in vacaunder any mesne process of attachment issued out of said court or by a justice of the tion to investipeace, shall investigate the allegations contained in any affidavit required by law to be in mesne process, made and filed before the issuing of such process except such allegations as relate to the indebtedness of the defendants to the plaintiff, or the rent which the tenant is to pay or render, and when the same will be due. filed by plaintiff Notice to plaintiff. Property discharged. SEC. 2. Reasonable notice in writing of the hearing upon such petition shall be given to the party in whose favor such process issued, his attorney or agent. SEC 3. If upon such investigation the court or judge shall consider that there was not sufficient ground for the attachment, the property, rights and credits attached shall *NOTE. This chapter comprises chapter 424 of volume 11, as amended by chapter 181, volume 15, and is published in accordance with section 2 of said chapter. OF THE SURVIVENCY OF ACTIONS. CHAPTER 105. be discharged and the plaintiff or landlord shall pay the costs. The court or judge When. shall have power to make and enforce all necessary and proper order in the premises. Costs. Passed at Dover, March 15, 1881. Enforcement of orders. ABATE on the many plaintiffs or defendants. of action SECTION 1. Upon the death of one, or more, of several plaintiffs, Action does not or defendants, in action, wherein the cause of action survives, such death of one of action shall not abate, but may be prosecuted by, or against the surviving plaintiff, or defendant. SEC. 2. In all personal actions, except actions for assault and When the cause battery, defamation, malicious prosecution, or any injury to the per- survives. son, or upon penal statutes, the cause of action shall survive to and against the executors, or administrators, of the person to, or against whom the cause of action accrued. Accordingly, all actions, so surviving, may be instituted, or prosecuted, by, or against, the executors, or administrators, of the original party. But this provision Proviso. shall not affect the survivorship among the original parties to a joint cause of action. abate by death So of writs of SEC. 3. An action commenced by, or against, an executor, or ad- Action does not ministrator, shall not be abated by his death, or removal from of- of an executor fice; but a succeeding executor, or administrator, may be admitted or administrator. a party plaintiff, or made a party defendant, to such action. SEC. 4. Writs of error are within the foregoing provisions. SEC. 5. The benefit of a judgment for, or against, an executor, or administrator, shall not be lost by his death, or removal from office; but proceedings may be had upon such judgment either at the suit of, or against a succeeding executor, or administrator. error. Judgment may be executed by or against a succeeding executor or administrator. An executor, or administrator, may be admitted a party plaintiff How. to a judgment, on motion, without scire facias. [He may also be admitted a party plaintiff by suggesting on the Chap. 477, vol. 12. record the death of his testator, or intestate, in the same manner as He may be in cases of suits pending.] admitted on motion. SEC. 6. A statutory right of action, or remedy, against any officer, Statutory rights or person, in favor of any person, shall survive to, or against the of action survive. executor, or administrator, of such officer, or person, unless it be specially restricted in the statute., Chap 88, vol. 14. Executor or administrator OF PLEADING AND PRACTICE IN CIVIL ACTIONS. CHAPTER 106. SEC. 7. [That an executor or administrator, may be admitted a a party plaintiff to a judgment in vacation, without scire facias, on may be admitted application to the prothonotary, by suggesting on the record the death of his testator or intestate.] party plaintiff in vacation. Action not to abate CHAPTER 31, VOL. 13, LAWS OF DELAWARE. AN ACT IN RELATION TO INJURIES OR DEATH OCCASIONED BY SECTION 1. That no action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but Personal repre- the personal representatives of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction. sentatives. Widow of deceased or personal representatives may bring action. SEC. 2. Whenever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow of any such deceased person, or if there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned. Passed at Dover, January 26, 1866. SEC. CHAPTER CVI. OF PLEADING AND PRACTICE IN CIVIL ACTIONS. 1. The judges to make rules regulating pleadings. 2. General design. 3. Specific objects. Entire revision of rules to be made. 4. Judgment at first term, unless there Copy of cause of action to be filed. 5. In actions on deeds, &c., when exe- 6. Proof of partnership; when unneces SEC. 18. Testimony in freedom cases; how taken. 19. Replevin lies for unlawful detention. 20. And for goods taken in execution; when. Act in relation to the action of re plevin. 21. What debts may be SET-OFF. 22. In case of executors, &c. 23. On proof of SET-OFF and tender of balance, plaintiff to suffer nonsuit, 24. Action by public officer does not abate by his death or removal. 25. Verdicts may be general or special. 26. What papers may be taken by the jury. 27. Payment of money due by obligation, &c., may be proved without seal. Marriage of female plaintiff does not abate her action, 28. Proceedings stayed until husband is made a party. 29. Infant sues by guardian or next friend. The parol does not demur. 30. If plaintiff become INSANE; suit, conducted. how 31. Suits against unincorporated compa nies. 32. No declaration necessary in confess- 33. Declaration nunc pro tunc. Rules of court; judgment. OF PLEADING AND PRACTICE IN CIVIL ACTIONS. CHAPTER 106. rules for regu SECTION 1. The judges of the Superior Court, or any three of Judges to make them, shall have power, by any rules to be, from time to time, by lating pleadings. them made, in term or vacation, to make such alterations in the mode of pleading in said court, and in the mode of entering and transcribing pleadings, judgments, and other proceeedings in actions of law, and such regulations as to the payment of costs, and otherwise for carrying into effect the said alterations, as to them may seem expedient: provided, that no such rule shall have the effect of Proviso. depriving any person of the power of pleading the general issue, and of giving the special matter in evidence, in any case where such power is, or shall be given by act of the general assembly. SEC. 2. Such rules shall be so framed as to promote and require General design. conciseness, brevity and plainness in pleading, without regarding form, further than it is necessary, or conducive to these objects. depositions, &c. SEC. 3. The said judges, shall also have power, by such rules, to To make rules regulate the taking depositions, or excepting thereto, the distribu- concerning tion of money in court, the order and manner of trying causes and of pleading, of notices, and all other matters regulating the practice and mode of conducting the business of said court, in all cases not expressly provided for by law. They shall, before the next fall term, revise the rules of said Judge to revise court with a view to the attainment, as far as practicable, of the the rules of court. following improvements in practice : First, simplifying and shortening the pleadings and other proceedings; Second, presenting more distinctly the questions to be tried by a jury, particularly in some of the actions on promises, by a more full and precise statement in the declaration, or by a bill of particulars, and by a more definite statement of the ground of defence; Third, excluding unnecessary and immaterial averments and recitals, and prohibiting useless repetitions ; Fourth, the expediting the decision of causes; Sixth, the remedying of all abuses and imperfections that may be found to exist in the practice. "be entered at there be an affi SEC. 4. (In all actions in the Superior Court upon bills, notes, Judgment may bonds, or other instruments of writing for the payment of money, first term unless or for the recovery of book accounts, on foreign judgments, and in davit of defence. all actions (of) scire facias on recognizances in the Orphans' Court and Court of Chancery, judgments or mortgages, judgment by default shall be entered upon motion by the plaintiff or his attorney on the last day of the regular term to which the original process is returnable, notwithstanding appearance by the defendant, unless the defendant, or if there be more than one, one or more of them shall have previously filed in the cause an affidavit stating that he or they verily believes or believe there is a legal defence to the whole or part of such cause of action, and setting forth the nature and |