Delaware § 3108 - Prerequisites for issuance of capias ad respondendum.

§ 3108. Prerequisites for issuance of capias ad respondendum.

(a) No writ of capias ad respondendum shall be issued against any citizen of this State, in any civil action, unless the plaintiff therein, or if there be more than 1, some 1 or more of the plaintiffs, has made a written affidavit, and filed the same in the office of the prothonotary of the Superior Court of the county out of which the writ is to issue, stating that, to the best of his or her belief, the defendant has absconded, or is about to abscond from the place of the defendant’s usual abode; or that the defendant 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, stock, securities for money, or other personal estate or real estate of the value of more than $100, with intent to defraud his or her creditors, and shall, moreover, in such affidavit, specify and set forth the supposed fraudulent transactions. This section shall not apply where the action is for libel, slander or injury to the person or property, accompanied by violence, if any affidavit of the cause of action is filed with the praecipe.

(b) The Superior Court, upon the petition of any person arrested and upon reasonable notice in writing to the party in whose favor the process issued, or such party’s attorney or agent, shall investigate the allegations contained in any affidavit made and filed under this section, that the defendant has absconded or is about to abscond from the place of his or her usual abode, and the allegations and specifications of fraud contained in such affidavit. If, upon such investigation, the Court or Judge considers that there was not or is not sufficient cause for the arrest, the person arrested shall be discharged, and the plaintiff shall pay the costs. The Court or Judge may make and enforce all necessary and proper orders in the premises.

15 Del. Laws, c. 180;  16 Del. Laws, c. 530;  Code 1915, §  4093;  Code 1935, §  4584;  10 Del. C. 1953, §  3108;  70 Del. Laws, c. 186, §  1;