Suretyship

Del. Code tit. 18, ch. 77
in effect

Del. Code tit. 18, § 7701 Execution and sufficiency of corporate suretyship.

(a) Whenever any bond, undertaking, recognizance or other obligation is by law or the charter, ordinances, rules or regulations of any municipality, board, body, organization or public officer required or permitted to be made, given, tendered or filed with surety or sureties, and whenever the performance of any act, duty or obligation, or the refraining from any act, is required or permitted to be guaranteed, such bond, undertaking, obligation, recognizance or guarantee may be executed by an insurer duly authorized to transact surety insurance in this State under a certificate of authority issued by the Insurance Commissioner of this State. (b) The execution by such insurer of such bond, undertaking, obligation, recognizance or guarantee shall be in all respects a full and complete compliance with every requirement of every law, charter, ordinance, rule or regulation that such bond, undertaking, obligation, recognizance or guarantee shall be executed by 1 surety or by 1 or more sureties, or that such sureties shall be residents or freeholders, either or both, or possess any other qualification, and shall be accordingly accepted and treated.

Del. Code tit. 18, § 7702 Acceptance and approval by public officers.

(a) Any public officer or department of state, county or municipal government, whose duty it may be to approve the surety upon any bond or bonds, may accept and approve such bonds when executed by the principal therein and by any surety insurer qualified to act as surety or guarantor as provided in § 7701 of this title. The Levy Court and County Councils of the several counties of this State may accept such bonds as security for receivers of taxes and county treasurers in lieu of the security provided for by the laws of this State. (b) Whenever any bond, undertaking, recognizance or guarantee has been duly executed in compliance with the terms of this chapter by the principal or principals therein, and by an insurer, duly authorized under the law of this State to transact the business of executing bonds of suretyship, then any officer, judge or any department of the state, or of any county or municipal government, whose duty it may be to approve of the surety upon the bond, undertaking, recognizance or guarantee may accept and approve such bond, undertaking, recognizance or guarantee.

Del. Code tit. 18, § 7703 Agreement requiring principal to deposit assets; withdrawal.

Any party of whom a bond or undertaking is required may agree with sureties for the deposit for safe keeping of any and all moneys and other depositable assets for which such sureties are or may be held responsible with a trust company, safe deposit company or bank authorized by law to transact business as such in this State, if such deposit is otherwise proper, in such manner as to prevent the withdrawal of such moneys and assets or any part thereof, except with the written consent of such sureties, or an order of the court, made on such notice to them as such court may direct.

Del. Code tit. 18, § 7704 Release of liability on bond; procedure.

The surety or representatives of any surety, upon the bond of any trustees, committee, guardian, assignees, receiver, executor or administrator or other fiduciary, may apply by petition to the court wherein the bond is filed or which may have jurisdiction of such trustee, committee, guardian, assignee, receiver, executor or administrator or other fiduciary or to a judge of the court, praying to be relieved from further liability as such surety for the acts or omissions of the trustee, committee, guardian, assignee, receiver, executor or administrator or other fiduciary, which may occur after the date of the order relieving such surety, to be granted as herein provided for; and to require such trustee, committee, guardian, receiver, assignee, executor or administrator or other fiduciary to show cause why he or she should not account, and such surety to be relieved from any such further liability as aforesaid, and such principal be required to give a new bond. Thereupon, upon the filing of such petition, the court or judge thereof shall issue such order, returnable at such time and place and to be served in such manner, as such court or judge may direct, and may restrain such trustee, committee, guardian, assignee, receiver, executor or administrator or other fiduciary from acting except in such manner as it may direct to preserve the trust estate, and, upon the return of such order to show cause, if the principal in the bond account in due form of law and file a new bond duly approved, then such court or judge shall make an order releasing such surety filing the petition from liability upon the bond for any subsequent act or default of the principal; and in default of such principal thus accounting and filing such bond, such court or judge shall make an order directing such trustee, committee, guardian, assignee, receiver, executor or administrator, or other fiduciary to account in due form of law, and, if the trust fund or estate shall be satisfactorily accounted for and delivered or properly secured, such surety shall be discharged from any and all further liability as such for the subsequent acts or omissions of the trustee, guardian, committee, assignee, receiver, executor or administrator or other fiduciary after the day of such surety being so relieved and discharged.

Del. Code tit. 18, § 7705 Estoppel of surety insurer to deny corporate power.

No insurer having signed any bond, undertaking or obligation as surety, guarantor or indemnitor shall be permitted to deny its corporate power to execute such instrument or incur such liability, in any proceeding to enforce liability against it thereunder.

Del. Code tit. 18, § 7706 Premium on bond of public officer; expense of office.

The expenses incurred by any public officer for suretyship upon any bond required by law of him or her, as well as the expenses for suretyship upon any bond required of any of his or her assistants or clerks, shall, where the bond or bonds are required for the protection of the State, be paid for by the State, and where the bond or bonds are required for the protection of any of the several counties, be paid for by the Levy Court or County Council of the county, and where the bond or bonds are required for the protection of a municipality, be paid for by the municipality, and shall be charged to and considered a part of the expenses of the office held by the official. The cost of the bond shall not exceed the sum or sums determined by any applicable rate filed by the surety with the Insurance Commissioner.

Del. Code tit. 18, § 7707 Premium on bond of fiduciary; expense of estate.

Any receiver, guardian, assignee, committee, trustee, executor, administrator or other fiduciary required by law or the order of any court to give a bond, undertaking or other obligation as such, who shall avail himself or herself of corporate suretyship in such bond, undertaking or obligation as authorized by the laws of this State, may present to the proper court or officer before whom he or she is required to account a statement and receipt showing the amount of charges paid for such corporate suretyship; and thereupon the court or other officer, before whom such accounting is rendered, may either order and direct such sum, either in whole or in part, to be a charge upon the estate and charged accordingly; or it may direct that no part thereof shall be a charge upon the estate. No charge for such suretyship shall in any case be allowed in excess of the sum or sums determined by any applicable rate filed by the surety with the Insurance Commissioner.

Del. Code tit. 18, § 7708 Warrant of attorney.

In all instances where corporate suretyship is offered in accordance with this chapter, and where the form of bond required by law contains a warrant of attorney, the bond shall be accepted without such warrant of attorney being written therein.

Del. Code tit. 18, § 7709 Assignment of obligation.

Where any persons are bound in any bond, bill or other writing made payable to any person, his or her executors, administrators, order or assigns, and the money due thereon or any balance thereof, shall be paid or tendered by a surety therein, the obligee shall be obliged to assign such bond, bill or other writing to such surety, and such assignee shall, by virtue of such assignment, have an action in his or her own name thereon against the principal debtor or his or her representative.

Del. Code tit. 18, § 7710 Joint sureties or debtors; assignment.

Where several persons are bound together in any bond, bill or other writing as joint debtors or as joint sureties, in any sum of money made payable to any person, his or her executors, administrators, order or assign and such bond, bill, or other writing shall be paid by any of such joint debtors or joint sureties, the creditor shall assign such bond, bill, or other writing, to the person paying the same; and such assignee shall, in his or her own name, as assignee, or otherwise, have such action or remedy as the creditor himself or herself might have had against the other joint debtors, or sureties, or their representatives, to recover such proportion of the money, so paid, as may be justly due from the defendants.

Del. Code tit. 18, § 7711 Defense of infancy to joint sureties or debtors.

Where several persons are bound together in any bond, bill or other writing or judgment as joint debtors or as joint sureties, in any sum of money, made payable to any person or corporation, the executors, administrators, successors, order or assigns, and 1 or more of such persons was, at the time of making, signing or executing the same, or at the time of the rendition of such judgment, an infant, such fact shall be no defense in any action, proceeding or suit for the enforcement of the liability of those bound thereunder, excepting as regards the person who was an infant at the time of making, signing or executing such bond, bill or other writing, or who was an infant at the time such judgment was rendered.

Del. Code tit. 18, § 7712 Rights of surety or of joint debtor on payment of judgment.

(a) If a judgment recovered against principal and surety shall be paid by the surety, the creditor shall mark such judgment to the use of the surety so paying the same; and the transferee shall, in the name of the plaintiff, have the same remedy by execution or other process against the principal debtor as the creditor could have had, the transfer by marking to the use of the surety being first filed of record in the court where the judgment is. (b) Where there is a judgment against several debtors or sureties and any of them shall pay the whole, the creditor shall mark such judgment to the use of the persons so paying the same; and the transferee shall, in the name of the plaintiff, be entitled to an execution or other process against the other debtors or sureties in the judgment, for a proportionable part of the debt or damages paid by such transferee; but, no defendant shall be debarred of any remedy against the plaintiff or the plaintiff’s representatives or assigns by any legal or equitable course of proceeding whatever.

Del. Code tit. 18, § 7713 Affidavit of sum due.

Before any transferee shall have the benefit of § 7712 of this title, the transferee shall file in the court, or before the justice of the peace where such proceedings are instituted, a statement of the sum due from the defendant with an affidavit that it is wholly unpaid.

Del. Code tit. 18, § 7714 Execution and effect of transfer.

Transfers, by marking to the use of the persons paying such judgment, shall be in writing, signed by the plaintiff or by the plaintiff’s attorney of record, and after the date thereof, the plaintiff may not release, or discharge any of the debts or sums so paid, but such transfer shall be without recourse to the plaintiff, and shall not make the plaintiff liable to the transferee in case the latter shall not recover the same.

Del. Code tit. 18, § 7715 Application of chapter.

Every provision in this chapter giving a right or remedy to, or imposing a duty upon, or referring to the act of a debtor, obligor, assignor or transferor, or a surety, obligee, assignee or transferee, creditor, or other person shall be construed to extend to or against his or her executors, administrators or assigns, when so applicable.

Del. Code tit. 18, § 7716 Remedies of codebtor or cosurety.

(a) Whenever 1 or more of several codebtors or cosureties for the payment of a debt shall pay or shall have paid to the creditor or creditors the sum due, including the costs, if any, that may have been incurred by them, the person or persons so paying, if the amount paid shall exceed their proportion of liability for the demand, shall be entitled to have a transfer of the creditor’s or creditors’ securities for the payment of the debt, whatever the nature of such securities may be, to enable him or her or them to obtain contribution from the others, liable with himself or herself or themselves; such transfer may be made by assignment, marking to the use, or other appropriate method. (b) When such transfer is made, the transferee or transferees shall be entitled to and shall have in his or her or their own name or names as such, or by and in the name of such creditor or creditors, for his or her or their own use as transferee or transferees, all and singular the remedy or remedies against the other debtor or debtors, surety or sureties which the creditor or creditors could have; and no such payment shall in anywise operate to discharge, impair or otherwise affect the securities held by the creditor or creditors to the prejudice of the debtor or debtors, surety or sureties, so paying; nor shall any release of such codebtor or codebtors, cosurety or cosureties, or entry of satisfaction upon any lien against him or her or them operate in any respect as a payment or discharge of the demand itself or of any of the securities therefor as against the other parties originally bound, to the end that such codebtor or codebtors, cosurety or cosureties may recover by the use of the creditor or creditors’ means or remedies the proportion of the demand which the codebtor or codebtors, cosurety or cosureties ought to pay according to law and equity. (c) The transfer to be made by the creditor or creditors shall not enable the transferee or transferees to take any legal proceedings against the codebtor or codebtors, cosurety or cosureties, unless such transferee or transferees, or some creditable person for him or her or them, shall first file in the office of the Prothonotary or justice of the peace of the county where legal proceedings are contemplated to be taken an affidavit, setting forth the amount which he or she claims his or her or their codebtor or codebtors, cosurety or cosureties is or are bound to contribute on account of such coindebtment or cosuretyship, and such amount shall be endorsed by the Prothonotary or magistrate upon the process issued.

Del. Code tit. 18, § 7717 Entry of satisfaction of judgment.

(a) Upon the payment of any judgment under and according to the provisions of this chapter, the right or power of the creditor or plaintiff therein to enter satisfaction upon the record of such judgment shall eo instanti, cease and determine, and this whether the transfer of such judgment shall have been made or not; the fact of the payment thereof shall be sufficient. (b) If any creditor or plaintiff in such judgment, after payment of any judgment to such creditor or plaintiff shall enter or cause to be entered satisfaction of the judgment upon the record thereof, without the express consent, in writing, of the person entitled, under the provisions of this chapter, to its transfer, the court in which such judgment is recovered shall, upon application of the person so entitled and upon sufficient proof of the facts, strike from the record the entry of satisfaction, whereupon the judgment shall be and remain in full force and virtue, and as valid and binding upon the defendant therein as it was or could have been, had such entry of satisfaction never been made. The application shall be in writing, and sworn or affirmed to by the applicant, and shall contain a general statement of the facts. Nothing in this section shall be construed to divest or interfere in any way with any rights which may have been acquired by innocent third persons who, in good faith, and without notice, may have relied and acted upon the protection and security of the entry of satisfaction. No defendant shall be debarred of any remedy against the plaintiff or the plaintiff’s representatives or assigns by any legal or equitable course of proceedings whatever.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title18/c077/sc01/index.htmlFetched: 10/4/2026

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