Courts and Judicial Procedure

Special Proceedings


The writ of habeas corpus shall be awarded and issued by the Superior Court except in cases involving child support enforcement in which case the writ shall be awarded and issued by the Family Court. The writ may also be awarded and issued by the Family Court in other cases which are otherwise within its jurisdiction. A petition for the issuance of a writ of habeas corpus may be reviewed and decided by the judge issuing the order incarcerating the petitioner in the first instance.

Code 1852, § 2545; Code 1915, § 4477; Code 1935, § 4929; 10 Del. C. 1953, § 6901; 70 Del. Laws, c. 354, § 1.;

Every person imprisoned or restrained of liberty by any officer or person, for any cause or under any color or pretense, shall have remedy by the writ of habeas corpus, and may obtain relief, except:

(1) Persons committed or detained on a charge of treason or felony, the species whereof is plainly and fully set forth in the commitment;

(2) Persons convicted of, or charged with, treason, felony, or any offense in another state, who ought, by the Constitution of the United States, to be delivered to the executive of such state, subject to the provisions of § 2510 of Title 11; and

(3) Persons imprisoned by the authority of the United States.

Code 1852, §§ 2541-2544; Code 1915, § 4476; Code 1935, § 4928; 10 Del. C. 1953, § 6902; 49 Del. Laws, c. 220, § 7; 70 Del. Laws, c. 186, § 1.;

(a) A person committed by any judge of this State, a justice of the peace, or by the mayor or any alderperson of any city or town, for a contempt, except a contempt issued by the Family Court in a case involving a child support order, shall be entitled to the writ of habeas corpus in the Superior Court. A person committed by the Family Court in a case involving a child support order shall be entitled to the writ of habeas corpus in the Family Court.

(b) Notice shall be given to the committing magistrate of the time and place of hearing. The prisoner may deny the alleged contempt, under oath. The court or judge may remand or discharge the party.

Code 1852, §§ 2562, 2563; Code 1915, § 4493; Code 1935, § 4945; 10 Del. C. 1953, § 6903; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 354, § 2.;

A writ of habeas corpus may be procured by 1 spouse living apart from the other, without being divorced, to determine the proper custody or charge of a minor child of the marriage, and orders may be made thereon, as provided by § 705 of Title 13 [repealed].

16 Del. Laws, c. 477, § 1; Code 1915, § 4495; Code 1935, § 4947; 10 Del. C. 1953, § 6904; 70 Del. Laws, c. 186, § 1.;

Application for a writ of habeas corpus may be made by the party complaining, or anyone for such party, setting forth upon oath, where and by whom, and for what cause, to the best of his or her knowledge, such party is imprisoned or restrained of liberty, and exhibiting a copy of the commitment, if there be any, or showing why such copy could not be procured.

Code 1852, § 2546; Code 1915, § 4478; Code 1935, § 4930; 10 Del. C. 1953, § 6905; 70 Del. Laws, c. 186, § 1.;

(a) The court or judge, to whom an application under this chapter is made, shall, without delay, under penalty of $1,000 to the party aggrieved, award and issue a writ of habeas corpus under seal of the court, directed to the officer or person in whose custody the prisoner is detained, returnable forthwith before such court or judge.

(b) The writ may be served by anyone who will do the service.

Code 1852, § 2547; Code 1915, § 4479; Code 1935, § 4931; 10 Del. C. 1953, § 6906.;

(a) When the writ of habeas corpus is served on the person to whom it is directed, either personally or by being left with any deputy or agent of the person at the place where the prisoner is detained, such person shall, without delay and within 3 days thereafter, produce the body of the prisoner as therein commanded; and shall fully certify in writing and under oath, the true cause or causes of the prisoner's detainer, and a copy of all process under which the prisoner is detained.

(b) The return may be contradicted, and may also be amended.

Code 1852, § 2548; Code 1915, § 4480; Code 1935, § 4932; 10 Del. C. 1953, § 6907; 70 Del. Laws, c. 186, § 1.;

The court or judge shall, upon the return of a writ of habeas corpus, without delay, proceed to examine the causes of imprisonment or restraint, giving notice to any party interested, and to the Attorney General or the Attorney General's deputy in cases of felony. The examination may be adjourned if necessary and the prisoner detained.

Code 1852, § 2549; Code 1915, § 4481; Code 1935, § 4933; 10 Del. C. 1953, § 6908; 70 Del. Laws, c. 186, § 1.;

(a) If no legal cause be shown for the imprisonment or restraint, the court or judge shall discharge the party therefrom. Any order entered upon a petition for a writ of habeas corpus discharging the prisoner from custody or otherwise granting relief to the prisoner may be appealed by the State to the Delaware Supreme Court.

(b) No person shall be discharged for a mere defect in the commitment, if the evidence before the court or judge is sufficient to require that he or she should be committed, or bound for his or her appearance. In such case the committing magistrate shall be summoned, proper witnesses examined, and the accused committed properly.

Code 1852, §§ 2550, 2557, 2558; Code 1915, §§ 4482, 4489; Code 1935, §§ 4934, 4941; 10 Del. C. 1953, § 6909; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 231, § 1.;

Repealed by 67 Del. Laws, c. 217, § 1, effective May 21, 1990.;

If the party is detained for any cause or offense for which the party is bailable, the party shall be discharged on becoming bound by recognizance, in a proper sum and with sufficient surety, for appearance at the court having cognizance of the matter. If the party does not give such security, the party shall be remanded with an order therefor expressing the sum in which the party is held to bail, and the court at which the party is required to appear. Any justice of the peace, court or other officer authorized by law to take bail, may, at any time before the sitting of the court, bail the party pursuant to such orders.

Code 1852, § 2551; Code 1915, § 4483; Code 1935, § 4935; 10 Del. C. 1953, § 6911; 70 Del. Laws, c. 186, § 1.;

If the party is committed on mesne process in a civil action for want of bail, and it appears that the sum required is excessive, the court or judge shall decide what bail is reasonable, and shall order that, on giving such bail, the party shall be discharged.

Code 1852, § 2552; Code 1915, § 4484; Code 1935, § 4936; 10 Del. C. 1953, § 6912.;

If the party is lawfully imprisoned or restrained and is not entitled to be discharged on giving bail, the party shall be remanded or otherwise properly committed.

Code 1852, § 2553; Code 1915, § 4485; Code 1935, § 4937; 10 Del. C. 1953, § 6913; 70 Del. Laws, c. 186, § 1.;

Any officer or such officer's deputy, neglecting for 6 hours after demand, to deliver a true copy of any warrant or process by which the officer detains a prisoner to any person who demands such copy and tenders a reasonable sum for copying the same, shall forfeit and pay to such prisoner $200.

Code 1852, § 2554; Code 1915, § 4486; Code 1935, § 4938; 10 Del. C. 1953, § 6914; 70 Del. Laws, c. 186, § 1.;

(a) If any officer or person to whom the writ of habeas corpus is directed, or any deputy of such officer, or agent of such person, neglects to return the writ and produce the body as required by § 6907 of this title, it shall be a contempt of the court under whose seal the writ issued and a forfeiture of office. Such officer, person, deputy, or agent shall forfeit and pay to the prisoner $500.

(b) Where the writ of habeas corpus is made returnable before the Superior Court, such contempt shall be punishable by the Court by both fine and imprisonment, or either, in its discretion; and the Court may, by attachment for contempt, compel the production before it, of the body of the person imprisoned or restrained of liberty.

Code 1852, § 2555; 17 Del. Laws, c. 222; Code 1915, § 4487; Code 1935, § 4939; 10 Del. C. 1953, § 6915; 70 Del. Laws, c. 186, § 1.;

Whoever, having in his or her custody or under his or her power, any person entitled to a writ of habeas corpus, whether any writ has been issued or not, with intent to elude the service of such writ, or to avoid the effect thereof, transfers the prisoner to the custody, or places the prisoner under the power or control of any other person, or conceals the prisoner, or changes the place of the prisoner's confinement, shall forfeit and pay to the party aggrieved $3,600.

Code 1852, § 2560; Code 1915, § 4491; Code 1935, § 4943; 10 Del. C. 1953, § 6916; 70 Del. Laws, c. 186, § 1.;

No person who has been discharged on a habeas corpus shall be again imprisoned or restrained for the same cause, unless the person is indicted therefor, or convicted thereof, or committed for want of bail by some court having jurisdiction of the cause; or unless, after a discharge for defect of proof, or for some material defect in the commitment in a criminal case, the person is again arrested on sufficient proof, and committed by legal process for the same offense.

Code 1852, § 2556; Code 1915, § 4488; Code 1935, § 4940; 10 Del. C. 1953, § 6917; 70 Del. Laws, c. 186, § 1.;

The costs in any proceeding under this chapter may be ordered to be paid by the county or otherwise. If the commitment is insufficient, the justice or officer who made it shall have no compensation for attendance.

Code 1852, § 2559; Code 1915, § 4490; Code 1935, § 4942; 10 Del. C. 1953, § 6918.;