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§ 5051 § 5052 § 5053

TITLE 10

Courts and Judicial Procedure

Procedure

CHAPTER 49. EXECUTIONS

Subchapter X. Capias Ad Satisfaciendum

§ 5051. Issuance of writ.

(a) No writ of capias ad satisfaciendum shall be issued upon any judgment in a civil action against any person in this State, until a writ of fieri facias on the judgment has issued, and it appears from the return of such fieri facias, that the defendant therein has not either real, or personal property within the county sufficient to satisfy the debt, or damages in the fieri facias expressed; or until the plaintiff in such judgment, or some credible person for the plaintiff, makes a written affidavit, to be filed in the Prothonotary's office before the issuing of the writ, stating that he or she verily believes that the defendant has not either real, or personal, estate sufficient to satisfy the debt, interest and costs contained in such judgment.

(b) Any writ of capias ad satisfaciendum issued, contrary to the provision in subsection (a) of this section shall be void, and the plaintiff obtaining such writ shall be liable to all the costs of the same.

Code 1852, §§ 2478, 2479; 12 Del. Laws, c. 30; Code 1915, § 4395; Code 1935, § 4853; 10 Del. C. 1953, § 5051; 70 Del. Laws, c. 186, § 1.;

§ 5052. Plaintiff's affidavit of fraud; exceptions from requirement.

(a) No writ of capias ad satisfaciendum shall be issued out of any court of this State upon a judgment in a civil action, against any person in this State, nor shall any such person be imprisoned for the nonperformance of a judgment rendered in any court for the payment of money, until the plaintiff in such judgment, or the party in whose favor the judgment rendered shall be, or some credible person for the plaintiff, shall, in addition to the requirement of § 5051 of this title make a written affidavit, to be filed in the office of the Prothonotary or the Register in Chancery, as the case may be, before the issuing of the process, stating that the defendant in such judgment is justly indebted to the plaintiff in a sum exceeding $50, and that he or she verily believes the defendant has secreted, conveyed away, assigned, settled, or disposed of either money, goods, chattels, stocks, securities for money, or other real, or personal estate, of the value of more than $50, with intent to defraud his or her creditors; and shall moreover, in such affidavit, specify and set forth the supposed fraudulent transactions.

(b) Any writ of capias ad satisfaciendum, issued contrary to the provision of subsection (a) of this section, shall be void, and the plaintiff obtaining such writ shall be liable to all the costs of the same.

(c) The provisions of this section shall not apply to any person imprisoned by authority of the United States, nor to any other than execution, or final process, or commitment, for debt, or damages, or costs, of a civil action, or nonperformance of a judgment rendered for the payment of money.

Code 1852, §§ 2480, 2481, 2483; 11 Del. Laws, c. 225, § 3; 11 Del. Laws, c. 606; 12 Del. Laws, c. 30; Code 1915, §§ 4396, 4398; Code 1935, §§ 4854, 4856; 10 Del. C. 1953, § 5052; 70 Del. Laws, c. 186, § 1.;

§ 5053. Motion denying fraud; disposition.

The court in which the affidavit referred to in § 5052 of this title is filed shall, upon motion of the person arrested, and reasonable notice in writing to the party in whose favor the process issued, or such party's attorney, investigate the specifications of fraud in an affidavit made under § 5052 of this title; and, upon such investigation, may discharge the movant from imprisonment, or the movant for trial not later than the next term of the court of the county wherein the process issued, upon a denial, in the motion, of the specifications of fraud, or may make such order in the premises as the court deems just and proper.

In the Superior Court, the trial referred to in this section shall be by the Court unless a trial by jury is demanded by the movant.

Code 1852, § 2482; 11 Del. Laws, c. 505; Code 1915, § 4397; Code 1935, § 4855; 10 Del. C. 1953, § 5053; 70 Del. Laws, c. 186, § 1.;