Majority
p. 34Edward T. Bellah, Trustee, Assignee of William F. Seeds, vs. William S. Hilles, Administrator C. T. A., of Levi Taylor Dickson. (March 30, 1899.) Lobe, C. J., and Pennewill and Boyce, J. J., sitting. Superior Court, New Castle County, February Term, 1899. Foreign Attachment (No. 134, September Term, 1895).
Headnote
Foreign Attachment—Amending Original Process.Foreign attachment is only to compel appearance, and where the defendant appears by putting in special bail, under the express terms of the statute, the case proceeds as in cases commenced by summons, and the plaintiff will be allowed to amend his original process.
Charles W. Smith and Peter L. Cooper, Jr., for plaintiff.
William S. Hilles for defendant.
Counsel for plaintiff
moved to amend the original process, so that the title of the plaintiff would be “William F. Seeds for use of Edward T. Bellah, Trustee.”
At the time of said motion the defendant had appeared by putting in special bail; the declaration was filed. It was contended by Mr. Hilles that it being a proceeding by foreign attachment which was purely a statutory remedy, it had been uniformly held that the statutory proceedings must be strictly adhered to, and that there was no statutory authority for amendment in such case.
held that as foreign attachment was only to compel appearance and that as the defendant had appeared by putting in special bail, under the express terms of the statute, the case proceeded as in cases commenced by summons, and that the plaintiff
p. 35
was therefore entitled to amend.
Waples and wife vs. McIlvaine’s Admr., 5 Harr., 381 ; McColley vs. Collins, 5 Harr., 391 ; Benjamin’s Executors vs. Boyce, 3 Harr., 315 ; Collins vs. Townsend, 2 Harr., 317 .
Amendment allowed.