The daily gazette., 1879-09-18
KILLGORE.s CASE.

THE CASE OF THE CITY VS.. DIR, GRIM
SHAW, ONE OF HIS sURETIEs, DECID-
ED BY THE BEFEREE IN FAVOR OF
THE sURETY.
This morning Edward q. Bradford,
Jr., referee, ren Tered his decision in he
case Of the Mayor and Council of Will
mington VS.. A. ii. Grimshaw, one of the
suIeties of Joseph l.. KiIlgore, formerly
| Ciy Treasurer, who was adjudged de-
iaulter. The case, in brief, is as fol-
lows:
In September, 1870, ,Killgore was elect
ed Treasurer of Whining on, for one
year, mmencing on the first day of
January, succeeding. On December 3Oth,
he gave an official bond in the sum of
| S25,OOO, with warrant of attorney and
confession Of judgment thereto, one of
the sureties of which was DIR. A. II.
| Grimshaw.
On January 22d, 1873. after KilIpore's
defalcation was made known, the city
caused Judgment by confession on the
bond TO be issued by he Superior Cou,t,
for Sl3S6, the amount of debt alleged,
with interest. Execution on this judg-
ent was issued to the May term, 1875
but before the levy was made he filed an
injunction In Chancery against the city
aud was awarded preliminary restrai Mt.
On May "A, 1877, the Chancellor made a
desree. refusing the prayer If the bill
tor perpetual injunction against the
execution and dissolved the preliminary
Injunction. But this action was with
out prejudice TO any application Grim.
shaw might make to the Superior Court
to have the execution set aside.
Subsequently Grimshaw filed a peti-
lion In the Superior Court, at the May
I'M fnV a Ia. l.
show cause why the Judgment should
not be set aside, annulled and vacated.
rule to show cause was Issued, return
able at the November Term, when the
answer OF the Mayor and Council was
hled. The case then rema' ned in stdtu
quo until April %, 1879, when, by con-
sent OF the parties and the RUE of the
referred to 4. G. Bradf .rd, Jr, ESQ. AZ
referee, to be- by him determined in the
the same manner as 1t would have been
determined by the Superior Court, had
IL not been referred.
On May LIST last the case was argued
before the referee by Geo. Gray, Esq.
for the petitioner. aud Walter Cummings
Esq, for the city. MT Gray argued on
Tue ground that the judgment was no,
entered until more than two years after
the defalcation, and was In contraven
ton OF the statute which provides tha,
no judgment can bs entered upon sucI
bonds after two years have ensued since
the cause of action.
Mr.. Cummins, for the city, took the
ground that the defalcation of Killgore
had been concealed by him, and was moi
scovered until within two years of the
entry of Judgment, in January, 1875
therefore, the statute Of Limitation did
not apply tn this case.
Mr.. Bradford examined the case will
great care, and delivered ar
exhaustive opinion, holding that the
concealment of fraudulent trans
actions on the part of the principa
would not bind an innocent surety, He
decided that the rule for setting aside the
Judgment be made absolute, and that the
petitioner pay all costs of the case up tc
the time of his petition, the city to pa,
all subsequent costs. His decision wi
be presented to the Superior Court, o
the November Term.
This case applies only to the first O
klllgore's official bonds and will not al.
ect the remaining suits.