Vandever and Archer v. Cannon

7 Del. 172

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

Gilpin, Ch. J.

But granting for the sake of argument that the act which you contend is repealed is still in force, then the provision requiring the affidavit of fraud applies only when the defendant is an inhabitant of this State.

Booth, for the defendant in the rule: The old act of 1785 referred to by the counsel on the other side, is expressly and absolutely repealed and its place supplied by the provisions to be found in the Rev. Code 499, and although the latter act is itself repealed in respect to this matter by the recent act of 1859, 11 Vol. Del. Daws 694, the last mentioned act does not revive, or restore the act of 1785; but even if it did, it would have no application to this case for the reason suggested by the Chief Justice. There being then no act of Assembly on the subject, the only principles of law which apply to the case, are the principles of the common law in regard to the matter. I do not deem it necessary to controvert, nor shall I controvert the position assumed, or the authorities cited on the other side, as to the regularity of the writs issued in this case, because they cannot affect the regularity of either writ in the present instance, for the simple reason that neither the fi. fa. nor ca. sa. was in point of fact executed by the sheriff. Th efi.fa. was returned nulla bona and the ca. sa. non est inventus. There has consequently been nothing done in the case at all in conflict with the regular mode of proceeding ruled and recognized in the very authorities on which the counsel relies to set aside the ca. sa. in this case.

And of this opinion was the court, wherefore the rule was discharged.