(a) Generally. At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of compelling appearance or securing satisfaction of a judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the statute.
Rule 64.Seizure of persons or property
Part VIII: Provisional and Final Remedies and Special Proceedings · Last amended March 1, 1961 · Last verified July 28, 2026
In one sentenceRule 64 makes the statutory remedies for seizing a person or property, to compel an appearance or secure a judgment, available at the start of and throughout a case, and sets out how a defendant seeks discharge on common bail or faces special bail.
Full Text of Rule 64
(b) Repealed.
(c) Motion by defendant for discharge on common bail. Upon the serving of a motion by a defendant for discharge on common bail, the Court shall issue a rule fixing a time for hearing the motion. Unless at or before the time fixed for the hearing, the plaintiff shall file an affidavit to hold to special bail, the defendant shall be discharged upon common bail. Upon the filing by plaintiff of an affidavit to hold to special bail, the Court after hearing the parties may make such order as it deems proper.
(d) Special bail; notice of justification. In all cases of taking special bail by the Prothonotary, reasonable notice of justification shall be given to the opposite party or his attorney.
Amendment History
Amended, effective Mar. 1, 1961.
Plain-English Summary
Rule 64(a) opens the door to Delaware's seizure remedies: any remedy that seizes a person or property to compel an appearance or to secure satisfaction of a judgment stays available at the commencement of and throughout a case, on the terms and in the manner the applicable statute provides. Subsection (b) has been repealed, leaving the rule's operative provisions in subsections (a), (c), and (d).
Subsection (c) gives a defendant a path off common bail. Once a defendant moves for discharge on common bail, the Court fixes a time for a hearing on that motion. Unless the plaintiff files an affidavit to hold the defendant to special bail before or at that hearing, the defendant is discharged on common bail. If the plaintiff does file that affidavit, the Court hears both sides and enters whatever order it finds proper.
Subsection (d) adds a notice requirement for special bail: when the Prothonotary takes special bail, the opposing party or that party's attorney gets reasonable notice of the justification hearing.
Frequently Asked Questions
What remedies does Rule 64 make available for seizing a person or property?
Rule 64(a) makes available whatever remedies for seizure of a person or property the applicable statute provides, for the purpose of compelling an appearance or securing satisfaction of a judgment ultimately entered in the action. These remedies apply at the commencement of and during the course of the action.
How does a defendant get discharged on common bail under Rule 64?
The defendant serves a motion for discharge on common bail, and the Court fixes a hearing time. Unless the plaintiff files an affidavit to hold the defendant to special bail before or at that hearing, Rule 64(c) requires the defendant's discharge on common bail.
What happens if the plaintiff files an affidavit to hold the defendant to special bail?
Rule 64(c) directs the Court to hear the parties and then make whatever order it deems proper, instead of automatically discharging the defendant on common bail.
Is Rule 64(b) still in effect?
No. Rule 64(b) has been repealed; the rule's operative provisions are now subsections (a), (c), and (d).
What notice must be given when special bail is taken?
Rule 64(d) requires that reasonable notice of the justification be given to the opposing party or that party's attorney whenever the Prothonotary takes special bail.
Source & verification. Rule text is reproduced verbatim from the
Delaware Rules of Civil Procedure for the Superior Court, adopted by the
Superior Court of the State of Delaware. Last verified July 28, 2026.
· Official source
Also known as: common bail discharge delawarespecial bail affidavit delaware courtseizure of persons or property delawarerule 64 delaware superior courtcivil arrest bail delaware