TITLE 10

Courts and Judicial Procedure

Special Proceedings

CHAPTER 73. INSOLVENCY

Subchapter IV. Proceedings Regarding Maintenance of Imprisoned Debtors


Whoever is imprisoned for debt, damages, or costs of a civil action, or for nonperformance of an order or judgment for the payment of money, by virtue of original execution, other process, or commitment, may prefer to the Superior Court of the county wherein such person is imprisoned, a petition stating the imprisonment and the cause thereof, and the inability of the petitioner to maintain himself, herself or his or her family, and praying for relief.

Code 1852, § 2717; Code 1915, § 4638; Code 1935, § 5096; 10 Del. C. 1953, § 7351; 70 Del. Laws, c. 186, § 1.;

(a) If, upon the hearing of a petition filed under § 7351 of this title and reasonable notice in writing of the time and place thereof to the party at whose suit the petitioner is imprisoned, or the party's attorney or agent, if there be such party, attorney or agent within the county, it shall appear that there is ground to apprehend that the petitioner or the petitioner's family, in consequence of the petitioner's imprisonment, will be chargeable to the county, the court shall order that the person at whose suit the petitioner is imprisoned, shall with sufficient surety enter into a recognizance to the State in the penal sum of $250, with condition to be void if the recognizor, the recognizor's heirs, executors, or administrators, shall keep the county harmless and indemnified of and from all damages and charges in consequence of the imprisonment of the petitioner, either for the maintenance, or through the sickness, of the petitioner or the petitioner's family. The order with the petition shall be filed in the office of the prothonotary in the county wherein the petitioner is imprisoned.

(b) If notice of such hearing cannot be given, by reason of the fact that the party, at whose suit the petitioner is imprisoned, resides out of the county, and has no attorney or agent therein, the same proceedings shall be had as if notice had been duly served.

Code 1852, §§ 2718, 2719; Code 1915, § 4639; Code 1935, § 5097; 10 Del. C. 1953, § 7352; 70 Del. Laws, c. 186, § 1.;

The prothonotary may approve the surety and take the recognizance directed by the order issued under § 7352 of this title. The recognizance shall be joint and several.

Code 1852, § 2720; Code 1915, § 4640; Code 1935, § 5098; 10 Del. C. 1953, § 7353.;

If the order issued under § 7352 of this title is not complied with by the person on whom it is made (or by some 1 of them if there be several) within 10 days after the same is made, the prothonotary shall certify the order and the failure to comply therewith to the sheriff, or jailer, of the county. Thereupon the petitioner shall be discharged from imprisonment.

Code 1852, § 2721; Code 1915, § 4641; Code 1935, § 5099; 10 Del. C. 1953, § 7354; 70 Del. Laws, c. 186, § 1.;

(a) The principal in any recognizance entered into under the provisions of this subchapter may, at any time, cause an entry to be made upon the recognizance, or the record thereof, and signed by the principal, to the effect that the principal is unwilling to continue liable touching any further imprisonment of the person upon whose petition the order was made.

(b) The prothonotary shall forthwith certify the substance of such order, recognizance and entry to the sheriff, or jailer, of the county. The petitioner shall thereupon be discharged from imprisonment at the suit of the party causing such entry to be made.

(c) Such entry shall in no manner impair the recognizance or have any other effect than to discharge the petitioner from further imprisonment at the suit of the party causing it to be made.

Code 1852, §§ 2722-2724; Code 1915, § 4642; Code 1935, § 5100; 10 Del. C. 1953, § 7355; 70 Del. Laws, c. 186, § 1.;

Whoever is imprisoned for the reasons stated in § 7351 of this title may prefer a petition to the Superior Court setting forth that such person is willing and able to give to the creditor good and sufficient security for the payment of the debt, damages or costs within a reasonable time. If, upon the hearing of the petition, and reasonable notice in writing of the time and place thereof to the party at whose suit the petitioner is imprisoned, or the party's attorney or agent, if there be such party, attorney or agent within the county, it appears that the petitioner is able to give such security, the Court shall proceed to order security to be given and taken in such form, and for the payment of such debt, damages and costs, in such time and manner as to the Court seems meet and proper in the case, and on such security being given and approved by the Court, an order shall be made for the immediate discharge of the petitioner from imprisonment.

11 Del. Laws, c. 653; Code 1915, § 4643; Code 1935, § 5101; 10 Del. C. 1953, § 7356; 70 Del. Laws, c. 186, § 1.;

A person discharged from imprisonment pursuant to § 7354, § 7355 or § 7356 of this title shall not be again arrested upon the same process, but such imprisonment and discharge shall have no other effect. No judgment, debt, or demand shall be thereby extinguished or invalidated.

Code 1852, § 2725; Code 1915, § 4644; Code 1935, § 5102; 10 Del. C. 1953, § 7357.;

(a) The provisions of this subchapter for the discharge of a person imprisoned on civil process, upon failure of the party at whose suit such person is imprisoned to indemnify the county, shall not apply to the case of a prisoner remanded by the court upon the trial of allegations of fraud; nor to the case of a citizen of this State imprisoned by virtue of a capias ad satisfaciendum, or for the nonperformance of an order or judgment for the payment of money, upon an affidavit of fraud; nor to the case of any person whatsoever imprisoned by virtue of civil process, whether original, or final, or whether issuing out of a court of law or equity, if the plaintiff in such process, within 5 days after the imprisonment of such person, files in the office of the prothonotary, or Register in Chancery, issuing the process, an affidavit of fraud against the person so imprisoned, in the same form as by law is required to be filed before the issuing of a capias ad satisfaciendum against a citizen of this State.

(b) A person so imprisoned, against whom such affidavit of fraud is filed within 5 days after such person's imprisonment, as provided in this section, shall have the same benefit of a hearing of the specifications of fraud in such affidavit set forth before the court, and upon like proceedings, as in the case of an affidavit of fraud filed before the issuing of a capias ad satisfaciendum.

Code 1852, §§ 2728, 2729; Code 1915, § 4647; Code 1935, § 5105; 10 Del. C. 1953, § 7358; 70 Del. Laws, c. 186, § 1.;