§ 361 Rules of Court.
(a) The Chancellor may, from time to time, adopt and promulgate general rules for the Court of Chancery which prescribe, establish and regulate the form, issuance and return of process and writs, the form and system of pleading, and all other practice and procedure with respect to the commencement, trial, hearing, and determination of causes and proceedings in such Court.
(b) Such rules shall be for the purpose of securing the just and, so far as possible, the speedy and inexpensive determination of every such proceeding. The rules shall not abridge, enlarge or modify any substantive right of any party.
(c) The rules so adopted and promulgated, and all amendments thereof, shall, after they have taken effect, supersede all statutory provisions in conflict or inconsistent therewith.
(d) Any inconsistency or conflict between any rule of court promulgated under the authority of this section or prior law, and any of the provisions of this Code or other statute of this State, dealing with practice and procedure in the Court of Chancery, shall be resolved in favor of such rule of court. Nothing in this Code, anything therein to the contrary notwithstanding, shall in any way limit, supersede or repeal any rule heretofore promulgated governing practice or procedure in the Court of Chancery.
Code 1852, §§ 1935, 1936; 17 Del. Laws, c. 215, §§ 1-3; 26 Del. Laws, c. 265; 27 Del. Laws, c. 270, § 4; Code 1915, §§ 3688, 3847, 3848, 3858; 34 Del. Laws, c. 216, § 1; Code 1935, §§ 4240, 4371, 4372, 4381; 10 Del. C. 1953, § 361.;
§ 362 Subpoenas, summonses and other process; orders and award of process.
The Court of Chancery may issue subpoenas, summonses, and all other process to compel defendants to answer actions in such Court, may make orders and award process, and may do all things necessary to bring causes to hearing.
Code 1852, § 1932; Code 1915, § 3844; Code 1935, § 4367; 10 Del. C. 1953, § 362.;
§ 363 Issuance of process upon filing of complaint.
No process shall issue for the appearance of a party in the Court of Chancery until the complaint is regularly filed.
Code 1852, § 1934; Code 1915, § 3846; Code 1935, § 4370; 10 Del. C. 1953, § 363.;
§ 364 Removal of defendant from county after service of process.
If a defendant shall remove from the county after being served with a summons, or other process, the case may proceed, and further process may be issued into any county.
Code 1852, § 1934; Code 1915, § 3846; Code 1935, § 4370; 10 Del. C. 1953, § 364; 70 Del. Laws, c. 186, § 1.;
§ 365 Compelling appearance of defendant in absence of personal service.
If, after summons or other process issued out of the Court of Chancery, any defendant therein named does not appear in obedience to the process and according to the rules of such Court, the Court may, on affidavit that such defendant is out of the State, or cannot be found to be served with process and that there is just ground to believe that the defendant intentionally avoids such service, make an order for his or her appearance on a certain day and publish such order as the Court directs not less than once a week for 3 consecutive weeks. If the defendant does not appear, after such publication, according to the order, the Court may enter judgment by default against the nonappearing defendant, and may thereupon issue process to compel the performance either by seizure of the real and personal property of such defendant or part thereof, sufficient to satisfy the plaintiff's demand, or by causing possession of the estate, or effects, demanded by the complaint, to be delivered to the plaintiff, or otherwise, as the case requires. The Court may also order the plaintiff to be paid the demand out of any property so seized, upon plaintiff's giving approved security, in a sufficient sum, to abide any order of the Court for the restitution thereof upon the defendant's appearing to defend the action, and paying such costs as the Court shall order. If such security is not given, the property seized, or whereof possession is ordered to be delivered, shall remain under the direction of the Court in the hands of a receiver or otherwise, until the defendant's appearance, or until such order is made therein as the Court deems is just.
Code 1852, § 1938; 17 Del. Laws, c. 215; Code 1915, § 3850; 34 Del. Laws, c. 216, § 2; 35 Del. Laws, c. 217; 36 Del. Laws, c. 268, § 1; Code 1935, § 4374; 10 Del. C. 1953, § 365; 70 Del. Laws, c. 186, § 1.;
§ 366 Compelling appearance of nonresident defendant.
(a) If it appears in any complaint filed in the Court of Chancery that the defendant or any one or more of the defendants is a nonresident of the State, the Court may make an order directing such nonresident defendant or defendants to appear by a day certain to be designated. Such order shall be served on such nonresident defendant or defendants by mail or otherwise, if practicable, and shall be published in such manner as the Court directs, not less than once a week for 3 consecutive weeks. The Court may compel the appearance of the defendant by the seizure of all or any part of his or her property, which property may be sold under the order of the Court to pay the demand of the plaintiff, if the defendant does not appear, or otherwise defaults. Any defendant whose property shall have been so seized and who shall have entered a general appearance in the cause may, upon notice to the plaintiff, petition the Court for an order releasing such property or any part thereof from the seizure. The Court shall release such property unless the plaintiff shall satisfy the Court that because of other circumstances there is a reasonable possibility that such release may render it substantially less likely that plaintiff will obtain satisfaction of any judgment secured. If such petition shall not be granted, or if no such petition shall be filed, such property shall remain subject to seizure and may be sold to satisfy any judgment entered in the cause. The Court may at any time release such property or any part thereof upon the giving of sufficient security.
(b) The Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof, the release of such property from seizure and for the sale of the property so seized, and may require the plaintiff to give approved security to abide any order of the Court respecting the property.
(c) Any transfer or assignment of the property so seized after the seizure thereof shall be void and after the sale of the property is made and confirmed, the purchaser shall be entitled to and have all the right, title and interest of the defendant in and to the property so seized and sold and such sale and confirmation shall transfer to the purchaser all the right, title and interest of the defendant in and to the property as fully as if the defendant had transferred the same to the purchaser in accordance with law.
Code 1852, § 1938; 17 Del. Laws, c. 215; Code 1915, § 3850; 34 Del. Laws, c. 216, § 2; 35 Del. Laws, c. 217; 36 Del. Laws, c. 268, § 1; Code 1935, § 4374; 10 Del. C. 1953, § 366; 50 Del. Laws, c. 379, § 1; 70 Del. Laws, c. 186, § 1.;
§ 367 Failure of defendant to appear; service of judgment before execution.
If a defendant, brought into the Court of Chancery by service of process, does not appear therein according to the rules of such Court, the Court may proceed to hear and determine the cause as if the defendant had actually appeared.
If any such defendant is in custody, or within the county, a copy of any judgment, made in the case, shall be served upon the defendant before any process shall issue in execution, or for the performance thereof.
Code 1852, §§ 1939, 1940; Code 1915, § 3851; Code 1935, § 4375; 10 Del. C. 1953, § 367; 70 Del. Laws, c. 186, § 1.;
§ 368 Commissions for taking answers and examining witnesses.
The Court of Chancery may award commissions for taking answers and examining witnesses, in all causes brought before it.
Code 1852, § 1932; Code 1915, § 3844; Code 1935, § 4367; 10 Del. C. 1953, § 368.;
§ 369 Issues of fact triable by jury.
When matters of fact, proper to be tried by a jury, arise in any cause depending in Chancery, the Court of Chancery may order such facts to trial by issues at the Bar of the Superior Court.
Code 1852, § 1933; Code 1915, § 3844; Code 1935, § 4367; 10 Del. C. 1953, § 369.;
§ 370 Enforcement of judgments.
The Court of Chancery may enforce obedience to its judgments by imprisonment of the body, or by sequestration of lands.
Code 1852, § 1932; Code 1915, § 3844; Code 1935, § 4367; 10 Del. C. 1953, § 370.;
§ 371 Sale of land to enforce judgment.
All real estate, within this State, shall be liable to be sold, by order of the Court of Chancery, on such terms and in such manner as the Court directs, by the sheriff, or by any party to a civil action in Chancery, when such sale shall be necessary to give effect to, and carry into execution a judgment of the Court of Chancery. When any such real estate is so sold, and there is a surplus of money, arising from the sale, above, what is sufficient for the purposes of the sale, such surplus shall be paid over, or applied, as the Court orders. Such sales shall be as available in law to the vendees, as sales of land seized and sold upon judgment and execution are available by virtue of any law in this State. If any such judgment, under which any real estate is so sold, is reversed by the Supreme Court, none of the real estate, so sold, shall be restored, nor shall the sale thereof be avoided, but restitution shall be made, in such cases, of the money for which such real estate was sold. No sale shall be valid until return thereof is made to the Court of Chancery, and it is approved and confirmed by the Court.
Code 1852, § 1946; Code 1915, § 3857; Code 1935, § 4380; 10 Del. C. 1953, § 371.;
§ 372 Power to appoint Masters.
(a) Unless expressly prohibited by a statute pursuant to which a particular cause has been initiated in the Court of Chancery, the Court of Chancery may, in any cause pending in the Court of Chancery of this State, appoint a Master in Chancery, pro hac vice.
(b) The Court may make and promulgate rules regulating the duties and compensation of Masters in Chancery appointed under subsection (a) of this section, and regulating the practice in all particulars relating to such Masters in Chancery. The compensation of such Masters in Chancery shall be paid under the rules of court by the parties to the causes in which they are appointed.
§ 373 Appointment of Masters for purpose of executing certain instruments.
In all cases where the Court of Chancery orders the execution of any conveyance, assignment, release, acquittance or other instrument and the party against whom the judgment is made does not comply therewith within the time mentioned in the judgment, the Court may appoint a Master for such purpose. Such conveyance, assignment, release, acquittance or other instrument when executed by such Master and approved by the Court shall be as valid and effectual as if done by the party required by the judgment to make the same. Any such instrument shall be recorded by the Master if it is necessary.
Code 1915, § 3860A; 33 Del. Laws, c. 229; Code 1935, § 4384; 10 Del. C. 1953, § 373.;
§ 374 Relief from forfeitures.
The Court of Chancery shall not relieve from any forfeiture incurred, by the nonperformance of any condition contained in or annexed to any gift, grant or contract to which the State is or may be a party. Such forfeiture, when insisted on and declared by the General Assembly and the cause thereof ascertained or admitted to exist, shall be absolutely final and unrelievable.
12 Del. Laws, c. 215; Code 1915, § 3861; Code 1935, § 4385; 10 Del. C. 1953, § 374.;
§ 375 Recording of bonds and other obligations.
All bonds or obligations taken pursuant to any order or judgment of the Court of Chancery in this State, shall be recorded in such Court in such manner as the Court directs. The record of any such bond or obligation so recorded, shall, upon proof of the loss of the original, be received as evidence in all courts within this State.
14 Del. Laws, c. 83; Code 1915, § 3887; Code 1935, § 4411; 10 Del. C. 1953, § 375.;