Courts and Judicial Procedure

Special Proceedings


Subchapter I. Proceedings for Discharge

Whoever is imprisoned for debt, damages, or costs, by virtue of any process or commitment, in a civil action (except process or commitment of the Court of Chancery), having resided in this State for 1 year next preceding such imprisonment, may obtain discharge from such imprisonment upon petition to the Superior Court of the county wherein he or she is imprisoned, and compliance with the provisions of this subchapter.

Code 1852, § 2679; Code 1915, § 4612; Code 1935, § 5070; 10 Del. C. 1953, § 7301; 70 Del. Laws, c. 186, § 1.;

The petition for discharge shall set forth the imprisonment and the cause thereof, the insolvency of the petitioner, a full and true account of all the petitioner's real and personal estate, debts, credits, rights, money, and effects whatsoever, with the sums and dates of all the petitioner's bonds, notes, or other securities, and a true list, according to the best of the petitioner's knowledge and belief, of all the petitioner's creditors, with the sums due to them respectively. If the petitioner at any time has given, conveyed, assigned, settled, or disposed of money, stock, or property of any kind, upon trust, it shall be mentioned.

Code 1852, § 2680; Code 1915, § 4613; Code 1935, § 5071; 10 Del. C. 1953, § 7302; 70 Del. Laws, c. 186, § 1.;

The petition being preferred, the court shall award process for summoning the creditors of the petitioner to appear in the court, on some certain day, and show cause, if any they have, why the petitioner should not be discharged from imprisonment upon assigning his or her property for the benefit of his or her creditors. Service of such summons upon the agent or attorney of a creditor not residing in the State shall be a valid service as to such creditor. Service of a summons upon 1 of several parties, joint plaintiffs, or joint creditors, shall be sufficient so far as concerns a partnership, or joint debt.

Code 1852, § 2681; Code 1915, § 4614; Code 1935, § 5072; 10 Del. C. 1953, § 7303; 70 Del. Laws, c. 186, § 1.;

Proof of the service of a summons under § 7303 of this title shall be by the affidavit of the person serving the same written upon the summons.

An appearance entered, either personally or by attorney, shall be as effectual as proof of the service of the summons.

Code 1852, §§ 2682, 2683; Code 1915, § 4615; Code 1935, § 5073; 10 Del. C. 1953, § 7304.;

Any creditor in any sum not less than $50, the amount of which shall be proved by affidavit, may file an allegation of fraud against the petitioner, specifying the supposed fraudulent transactions, to which allegation the petitioner may plead. Thereupon the same shall be tried by a jury at the same term to which the petition is preferred.

Code 1852, § 2684; Code 1915, § 4616; Code 1935, § 5074; 10 Del. C. 1953, § 7305.;

If an allegation of fraud is not filed, or being filed is withdrawn, the court shall hear what is alleged and proved for or against granting the prayer of the petition.

Code 1852, § 2685; Code 1915, § 4617; Code 1935, § 5075; 10 Del. C. 1953, § 7306.;

Interrogatories may be proposed by any creditor to the petitioner, touching the causes of the petitioner's insolvency, the ownership, disposal and state of any property, the time of contracting any debt, or of executing any security, deed, or other instrument, and the consideration thereof, and any other matter which the court deems a proper subject of such inquiry. The petitioner shall, upon the requirement of any creditor, fully and distinctly answer the interrogatories upon oath or affirmation. The petitioner's answers, being reduced to writing, shall be signed by the petitioner.

Code 1852, § 2686; Code 1915, § 4618; Code 1935, § 5076; 10 Del. C. 1953, § 7307; 70 Del. Laws, c. 186, § 1.;

Upon sufficient cause shown, the court may order the petitioner to produce any money in the petitioner's possession or control, or any deeds, bonds, notes, books of account, or other writings relating to his or her estate, and remand the petitioner until such order is complied with.

Code 1852, § 2687; Code 1915, § 4619; Code 1935, § 5077; 10 Del. C. 1953, § 7308; 70 Del. Laws, c. 186, § 1.;

If it appears to the court that the petitioner has fraudulently secreted, transferred, disposed of, or removed any goods, chattels, rights, credits, money, or other property, or has been guilty of deception or fraud in contracting any debt, or has not fully and truly answered the interrogatories proposed, or has committed any fraud by which the petitioner's creditors may be injured, the petition shall be dismissed and the petitioner remanded.

Code 1852, § 2688; Code 1915, § 4620; Code 1935, § 5078; 10 Del. C. 1953, § 7309; 70 Del. Laws, c. 186, § 1.;

If it appears to the court that there is no sufficient cause for remanding the petitioner, it shall order that the petitioner be discharged from imprisonment after first fulfilling the requirements of §§ 7311 and 7312 of this title.

Code 1852, § 2697; Code 1915, § 4621; Code 1935, § 5079; 10 Del. C. 1953, § 7310; 70 Del. Laws, c. 186, § 1.;

Before an order for a petitioner's discharge, the petitioner shall take an oath or affirmation according to the following form, the same being first distinctly read to him or her:

"I............. do solemnly swear (or affirm) that the account set forth in my petition to be discharged from imprisonment, is a full and true account of all my real and personal estate, legal and equitable, in possession, reversion and remainder, and of every nature and description, including all my debts, credits, rights, money and effects whatsoever; and that I have not at any time, given, conveyed, assigned, settled, disposed of, or delivered any lands, goods, money, stock, securities, or other real or personal estate, so as to expect any benefit or advantage therefrom, or upon any trust otherwise than as mentioned in said petition; that I have not contracted any debt, nor executed any bonds, or security, nor done any other act or thing to defraud my creditors; and that I have not intentionally or knowingly omitted from the list set forth in my petition any one of my creditors, nor misstated any debt due from me; so help me God. (Or so I do solemnly affirm.)''

Code 1852, § 2698; Code 1915, § 4622; Code 1935, § 5080; 10 Del. C. 1953, § 7311; 70 Del. Laws, c. 186, § 1.;

The petitioner shall also, before an order for his or her discharge, execute a deed of assignment, to a trustee, or trustees, appointed by the Court. Such deed shall be endorsed upon, or annexed to the petition, and shall be according to the following form:

"I............. do grant and assign to their heirs and

assigns, as joint tenants, upon trust for all my creditors, all my lands, tenements, hereditaments, goods, chattels, rights, credits, and real and personal estate, of every nature and description, wheresoever situate or being.

Witness my hand and seal the............. day of............. A.D. 20.......

Signed, sealed, and delivered,    ....... LS.''

in open court, before

If 1 trustee only be appointed, the deed may be adapted to the case.

Code 1852, § 2699; Code 1915, § 4623; Code 1935, § 5081; 10 Del. C. 1953, § 7312; 70 Del. Laws, c. 186, § 1.;

Whoever is imprisoned for the nonperformance of any order or judgment for the payment of money, or costs, by virtue of attachment, or other process, issued out of the Court of Chancery, having resided within the State for 1 year next before his or her imprisonment, may prefer to the Court of Chancery, held in the county wherein he or she is imprisoned, a petition of the same purport prescribed in § 7302 of this title. Thereupon the Court of Chancery shall have and exercise jurisdiction over the subject of such petition, in the same manner and by like proceedings, as is provided in this subchapter in the case of a petition to the Superior Court, except as it regards the directing of an issue.

Code 1852, § 2700; Code 1915, § 4624; Code 1935, § 5082; 10 Del. C. 1953, § 7313; 70 Del. Laws, c. 186, § 1.;

Every petition, and all proceedings, orders and adjudications in cases of insolvency, shall be recorded by the prothonotary, or Register in Chancery, in suitable books kept for the purpose. A correct alphabetical index shall be kept for each book.

Code 1852, § 2701; Code 1915, § 4625; Code 1935, § 5083; 10 Del. C. 1953, § 7314.;