§ 7358 — Special proceedings; affidavit of fraud

(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.

Legislative History

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