OF EXECUTION. CHAP. 111. ADDITIONAL ACTS. CHAPTER 221, VOL. 18, LAWS OF DELAWARE. AN ACT IN RELATION TO MORTGAGES. SECTION 1. That whenever the dividing line between any two counties of this State Where writ of scire facias may shall run through a tract of land conveyed in mortgage a writ a scire facias may be sued be sued out. out in either county in which any part of such tract is situated, directed to the sheriff of the county in which such writ is sued out, and the said sheriff shall be authorized to make service of the said writ notwithstanding any person or persons liable to such service Service. and residing in this State may live outside his bailiwick, and the Superior Court of the county wherein such suit is brought may give definitive judgment upon such scire facias with the same effect as if the said lands lay wholly within such county. levari facias shall The writ of levari facias awarded upon any such judgment for the sale of any To whom writ of such tract shall be directed to the sheriff of the county wherein the judgment was be directed. given, and the said sheriff shall proceed in the same manner as is prescribed in other sale of the cases of lands upon such execution process, and shall have authority on the said writ to sell the said tract of land in the whole, and altogether at one and the same time, and to make return thereof to the court out of which the said writ is issued, Return. and upon confirmation of such sale by the said court to make a deed to the purchaser Where made. conveying the whole as fully as if the same had been wholly situated in his bailiwick. Any deed so made shall be recorded in each of the counties in which the land is situated, notice of any such sale shall be set up in at least five of the most public Notice of sale. places in each of the hundreds in which the said land or any part thereof is located. Passed at Dover, March 29, 1887. SCIRE FACIAS ON JUDGMENT. SEC. 61. A writ of scire facias may be sued upon a judgment in When and how a personal, or mixed action, as well as upon a judgment in a real ac- sued out. tion, as also upon all recognizances, to obtain execution of such judgment, or recognizances. Such writ may be sued by and against the parties to the judgment, or recognizance, and also by and against any other persons entitled, or liable, to the execution thereof, whether as executors, administrators, heirs, terre-tenants, or otherwise. tion on judg SCRIPT and on SEC. 62. An execution may be issued upon a judgment recovered Limit of execu before a justice of the peace, and of which a transcript shall have ments by TRAN been filed and entered in the Superior Court, or on a judgment upon APPEAL an appeal from a justice of the peace, at any time within five years from entering the transcript, or giving the judgment on appeal, without scire facias, unless it shall be necessary to make a party defendant. A party plaintiff may be made by suggesting the facts Party PLAINTIFF and stating the proper party on the record, without scire freias, and on motion. the proceeding shall be in the name of the proper party so stated. CHAPTER 451, VOL. 11, LAWS OF DELAWARE. AN ACT IN RELATION TO THE EXECUTION OF JUDGMENTS IN CIVIL ACTIONS. SECTON 1. That an execution may be issued upon a judgment in a civil action at Execution may OF EXECUTION. CHAPTER 111. be issued; when. any time within five years from the time when such judgment was entered or rendered, or from the time when such judgment became due; or to collect any installment of a judgment within five years from the time when such installment fell due. This section shall only apply to cases when no execution has been previously issued to collect such judgment or installment, and to cases where one or more have been issued for such purpose, and it appears by the return of the officer that such judgment or installment, as the case may be, has not been paid or satisfied. As to all such cases the law shall remain as at present. Chap. 207, vol.12.. SEC. 2. That no judgment shall be deemed to be paid or satisfied, in whole or in part, by a levy on execution process, unless it appear otherwise than by the fact of such levy, that such payment or satisfaction has been made. Passed at Dover, March 4, 1857. LIEN OF EXECUTIONS. [SEC. 63. An execution shall not bind goods and chattels until it Execution binds is delivered to the sheriff or other proper officer to be executed. An from delivery, if execution shall, from the time it is so delivered, bind all the goods No levy to bind and chattels of the defendant within the bailiwick, which shall be longer than three actually levied upon within sixty days thereafter. No levy upon levied in 60 days. years against subsequent executions. Priority of lien. Date to be indorsed. Sheriff to note goods and chattels, made by virtue of execution process, shall be of any force or effect as against a subsequent execution levied upon the same goods and chattels for a longer period than three years from the making of such first mentioned levy.] SEC. 64. If several executions against the same defendant be delivered on the same day, the first delivered shall have priority. If several executions against the same defendant be delivered together, they shall have priority according to their respective numbers. SEC. 65. The prothonotary, issuing an execution, shall indorse thereon the date of its issue. SEC. 66. The sheriff, or other officer, receiving an execution, and indorse time. shall, in a docket, set down the date of receiving it; and when several executions are delivered on the same day, the docket shall show the order in which they are received. He shall also indorse upon an execution, immediately on receiving it, the precise time of its delivery to him. Restriction. Real debt to be indorsed on exeeution for penalty. Imprisonment if party die, or escape. SEC. 67. The provisions of the four next foregoing sections do not apply to executions issued by justices of the peace. OTHER MATTERS. SEC. 68. When an execution is issued upon a judgment for a penalty, the officer issuing the same shall indorse thereon the real debt and the time from which interest is to be calculated. SEC. 69. If a person arrested, or imprisoned, by virtue of an no satisfaction execution, die in execution, or escape; in either case, the arrest, or imprisonment, shall be no satisfaction of the judgment, on which the execution is issued; and the execution shall be held to be in no part executed by such arrest or imprisonment. OF EXECUTION. CHAP. 111. ADDITIONAL ACTS. officer for escapes. SEC. 70. If a person, arrested, or imprisoned, by virtue of an Liability of execution, be suffered to escape, the sheriff, constable, or other officer having the custody of such person at the time of his escape, shall be answerable for the full amount payable according to the execution; and the person at whose suit the execution was issued, Remedy. or for whose use it is indorsed, his executors, or administrators, shall have an action of debt therefor, against such sheriff, constable, or other officer, his executors, or administrators. The non-payment of said amount shall be a breach of the condition of the official recognizance or obligation, of such sheriff, constable, or officer. ment be reversed be restored. SEC. 71. If, after the sale of real estate upon execution process, If, after a sale of the judgment upon which such writ is awarded shall be reversed land, the judg for error, the real estate, so sold, shall not be restored, nor any part the land shall not thereof, nor shall the sale thereof be avoided; but in such case, restitution only of the money for which such lands may be sold, shall be made. CHAPTER 186, VOL. 15, LAWS OF DELAWARE. AN ACT PROVIDING FOR THE PAYMENT OF FUNERAL EXPENSES, respecting appli ceeds of sale of under execution process. SECTION 1. That whenever any sherfff or constable, by virtue of any execution Duty of sheriffs process, shall supersede an executor or administrator, and sell the goods and chattels and constables of any deceased person, on whose estate there have been letters testamentary or of cation of proadministration granted, shall out of the proceeds of said sale, and before applying any goods of depart thereof towards satisfying any execution, pay, Ist, funeral expenses of said de- ceased persons, ceased: 2d, the reasonable bills for medicine and medical attendance during last sickness of the deceased, and for nursing and necessaries for the last sickness of the deceased. SEC. 2. That in case there has been no administration or letters testamentary granted When no adminon the estate of the deceased, any sheriff or constable selling said deceased person's istration, &c., has been granted, goods by virtue of any execution process, shall, before applying any proceeds of the sale towards satisfying any execution, pay in the order in which they stand, the said bills mentioned in Section 1 of this bill. Passed at Dover, March 2, 1875. CHAPTER 144, VOL. 16, LAWS OF DELAWARE. AN ACT TO AUTHORIZE THE SHERIFFS OF THE SEVERAL COUN- for record of SECTION 1. That the sheriffs of the respective counties of this State shall procure Procurement of proper books and enter therein the disposition of all moneys arising from the sale of books by sheriffs property under execution process, when the same is applicable otherwise than to exe- disposition of cutions in their hands. certain monies. SEC. 2. The said books shall be furnished by the Levy Court of each county, to the Books supplied sheriff of each county, and shall be kept in the prothonotary's office of such county, by Levy Court. Where kept. as other records are kept, to be taken from there only by the sheriffs respectively, when Compensation to sheriff, What Prothono tary shall note in said book. DEFECTS IN PLEADING AND THE AMENDMENT THEREOF. CHAPTER 112. it is necessary to make entries therein, and his compensation for every such entry shall not be less than fifty cents, unless the said entry shall exceed five in number, when it shall be ten cents for every such entry, and such charge shall be included in the costs charged by the said sheriff. SEC. 3. The prothonotary of each county shall note upon the record of each judg ment to which any application of money shall be made as aforesaid, a reference to the record so made by the sheriff. Passed at Dover, March 28, 1879. On DEMURRER no defect considered unless alleged. SECTION 1. Upon a demurrer, the court shall not consider any defect not specially alleged, if, upon the whole matter appearing, judgment can be given according to the merits of the case. SEC. 2. No judgment shall be reversed for any defect, or imperbe reversed for fection, in matter of form which might, by law, have been Judgment not to formal defects. Defects cured by judgment. Defects cured amended. SEC. 3. Judgment shall not be arrested, or reversed, for any variance between the writ and declaration; nor for any error in the writ; nor for want of a warrant of attorney; nor for want of entry of the admission of next friend, or guardian; nor because an infant plaintiff prosecuted, or appeared, by attorney; nor for the omission of continuances; nor for default of a profert, or of a reference to a record; nor for omitting to allege that an act was done "with force and arms," or "against the peace," nor for want of any, or for a wrong venue; nor for any defect, or omission, in setting forth the summoning, or qualification of jurors; nor for any clerical misprision, or formal defect whatever, if, upon the whole record, there appears substantial ground for the judgment. SEC. 4. After verdict, judgment shall not be arrested, nor re DEFECTS IN PLEADING AND THE AMENDMENT THEREOF. CHAPTER 112. versed, for error in the form of action; nor for misjoinder of causes of action; nor for any error in any count, if there be a sufficient count in the declaration, unless it expressly appears that some part of the verdict was found on matter not contained in any good count. SEC. 5. The death of either party, between verdict and judgment, Death between shall not be alleged as error, if judgment be entered within two ment not to terms after the verdict. verdict and judg vitiate. by reference or SEC. 6. The entry of a reference shall be a release of all previous Errors released error. The confessing a judgment shall be a release of all errors. confession of SEC. 7. If an executor be named as administrator, or conversely, Errors in reprein any pleading, it may be amended. SEC. 8. If a female plaintiff marry, and the action proceed without making the husband a party, it shall not be error. judgment. sentative characacter amendable. Action continued after marriage. to be properly able. SEC. 9. When it appears that an oath, or affirmation, has been Oath presumed administered by competent authority, it shall be presumed to have administered. been properly administered unless the contrary appear. SEC. 10. Writs of scire facias, of execution, and of error, may Records amendbe amended; and, after judgment, the court before whom a record is, Scire facias. may order the amendment of any clerical error in any part of such Execution. record; and when there is matter to amend by, may order amendment that will tend to the furtherance of justice. Writ of error any amendable. amendable SEC. 11. In any civil cause pending before the Superior Court, Any error the said court shall have power, at any time before judgment, to before judgment. allow amendments either in form or substance, of any process, pleading or proceeding, in such action on such terms as shall be just and reasonable. error after judg SEC. 12. After judgment rendered in any civil action, any defects, And any formal or imperfections, in matter of form, found in the record, or pro- ment. ceedings, in the action, may be rectified and amended by the court in which the judgment is rendered, or by the court to which it shall be removed by writ of error, if substantial justice requires it, and if the amendment is in affirmance of the judgment. SEC. 13. In actions of assumpsit the plaintiff may, on motion, Common counts without costs, or continuance, at any time before the cause is com- assumpsit, at any mitted to the jury, file any of the common counts applicable to the jury takes the case, including also the money counts, and the counts on an account stated. It shall be no objection that the jury have been sworn. may be filed in time before the case. allowable during the trial. SEC. 14. In any civil cause pending before the Superior Court, Amendments the said court shall have power, during the trial, to allow an amendment of the record when any variance shall appear between it and any written, printed, or verbal evidence in any particular in the judgment of the court, not material to the merits of the case and by which the opposite party cannot have been prejudiced in the conduct of his action, or defence; such amendment shall be forthwith made by the prothonotary with, or without, the payment of costs to the other party, or on such other terms as the court shall think |