AN ACT to amend Chapter 106 of the Revised Code.
SECTION 1. Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met, That Chapter 455 of the Eleventh Volume of Delaware Laws, Chapter 461 of the 13th Volume Delaware Laws, and that Chapter 89 of the 14th Volume of Delaware Laws, be and the same are hereby
SECTION 2. And be it further enacted, That the first paragraph Section 4, of Section 4 of Chapter 106 of the Revised Statutes be stricken out and the following inserted in lieu thereof: In all actions in Judgment the Superior Court upon bills, notes, bonds, or other instruments of writing for the payment of money, or for the recovery of book accounts, on foreign judgments, and in 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 defense to the whole or part of such cause of action, and setting forth the nature and character of the same ; if the defense be to a part only of the cause of action, the defendant, or if there be more than one, any one or more of them shall, in such affidavit specify the sum which he or they admits or admit to be due, and judgment shall be entered for the plaintiff at his election for the sum acknowledged to be due ; Provided, That no judgment shall be entered by virtue of this section unless the plaintiff; or if there be more than one, some one or more of the plaintiffs shall, on or before the first day of the term to which the original process is returnable, file in the office of the prothonotary a copy of the instrument of writing, book entries, or claims, or in case of a scire facias, a certified abstract or transcript of the judgment, or mortgage, or recognizance, and in case of a suit on a foreign judgment a copy of said judgment, certified to under the act of Congress passed May 26, 1790, with an affidavit stating the sum demanded, and that he or they verily believe that the same is justly and truly due: And provided also, That upon any judgment under his section a stay of execution for six months shall be granted on security being given by the defendant for the payment of such security, with interest and costs, in such form as by the rules of the court shall be prescribed. In case of a suit by or against a corporation, the affidavit by the cashier or treasurer shall be sufficient in this section. In case of security being given as aforesaid by the defendant, the entry of such security shall have all the force and effect of a judgment, and at the expiration of the stay given, the said judgments, with costs, may be collected by execution process sued out jointly or severally against said principal and surety. Any affidavit authorized under the provisions of this chapter may be taken out of this State before any judge of any court of record, the mayor or chief magistrate of any city or borough, a commissioner of deeds for this State, or any consul or vice-consul of the United States; such affidavit being certified under the hand and official seal or seal of court, city or borough, as the case may be, of the person taking the same.
Passed at Dover, April 9, 1873.