Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1898-06-09

proper legal period for bringing actions
"This principle does not apply to the
present case The judgments men
toned In these proceedings we're not
entered within the period prescribed by
law. Thoy were therefore nullities.
Tho judgments themselves being ahao
utely void, aud the entry thereof being
absolutely prohibited by an act OF the
General Assembly, the several execu-
tions issued upon them cannot have any
possible legal effect.
Tho sheriff could not justify any
act done under them. The complaint
might lawfully resist their execution;
anu he certainly has, as a surety, the
right to avail himself of their illegality
In an attempt to enforce as against him
Ms surety for Killgore claim for the
amount of Killgore's defaication, in
such tiefalcation were proved to exist. ~
A decree was made by the Chancellor
refusing the prior of the bill 10 so far
az il prayed permanent injunction
against further proceedings on tho OK
ecution in the case. and dissolved the
preliminary injunction that had been
Issued with direction to the complain
ant to apply to the Superior Court for
rule upon the plaintiff 10 said iu1g-
fQBUt To buUW UHubb why Juubuoht
in said Superior Court shall not be set
aside, annulled and vacated.
Subsequently, upon the petition OF
Grimshaw to the Superior Court, q
rule iseued to show cause why tho
said Judgment should not be set aside,
auuulled and vacated; and by consent
of all parties, all matters aud contro-
yersies were referred to the Hon.
Edward g. Bradford to be heard and
deter mined; and in accordance with
his report, which was accompanied by
long and interesting opinion, the
ruls was made absolute.
1t in manifest from thia examination
that nothing can he found In this case
to affect tho authority OF Sparks w.
| the Farmers Bank, supra, as decisive
OF the point under consideration. 10
repeat a quotation already made, Chan
| cellor Bates said in that casu the equity
Of the bank ia collect "srises out of the
| fact that the defHlcatinn WAS fraud
concealed from the hank, with respect
tU which a court of equity will not
hermit the Statutory bar to be set up
until the apss of the prescribed time
after discovery - whilst Chancellor
Salisbury says, In Grimshaw vs. Will
mington, supra, at is true, as con-
tended by the solicitors of thu City
Council of Wilmington, that when one
person defrauds another Of bis just
rights and the fraud is concealed at the
time of its commission, and not dis.
covered within the period embraced by
the Statute of Limitation, the party
defrauded has a right to bring his
action for the recovery of the amount
of which he has been defrauded, at
any time within the proper legal period
for bringing action. !"
Il is unnecessary to comment at all
upon that part uf the learned Chancel-
lor'a opinion in which be stated thar
the judgment entered in the 6rimshaw
case were absolutely void, inasmuch as !
have already shown that our Court OF
Errors and Appeals, in Whitaker vs.
Parker, State treasurer, supra, has ex-
pressy passed upon the status Of such
judgments ae those which are the sub
ject matter Of this suit.
cannot, therefore, consider the con-
teption Of the learned counsel for COM
ulsiDapt that this Court should permit
the Statutory bar to be set up by a
surety, II not by bis principal, before
the lanse OF the prescribed term after
the discovery of the fraud which con-
stituted the breach of mis- bond. Such
contention 10 not now open to discus
siop in this court. The question, Hs
has been appointed out, was distinctly,
clearly, and unequivocally dscidod by
this court nearly 30 years ago and the
authority of that decision has not bsen
questioned by il since.
An adeoute discussion by me would
necessarily involve lengthy coDsidera-
ton and analysis Of a long seriea OF
authorities upon the general subject,
and would necessarily imply upon my
part disregard Of the doctrine OF atare
hecisis as applied to the carefully CON
sidered decisions of this court. which
would be in my judgment OF doubtful
propriety, IL not practically injurious to
the authority OF the decisions of the
Court of Chancery.
,, The situation OF the complainant ia a
hard one, the loss and annoyance
brought upon him by the dishonesty oi
the defaulting teller whose honesty be
guaranteed, must command sympathy,
! especially in view of the long series oil
! years during which, by abusing the
confidence reposed Upon him, the dis.
honest official 80 enormously Increased
the magnitude Of that loss.
: Such losses however. are unhappily,
' matters of daily occurrence and IN
this case cannot refrain from referring,
in conclusion, to the concluding words
) in the opinion of Chancellor Bates,
, which / have already quoted, aud
which vera intended to serve as words
? of warning 10 prevent the occurrences
! of Just such cases ae this, and were
uttered 10 years before the complainant
entered into the contract OF suretyshiI
, from the disastrous consequences oil
which he now seeks to BIO relieved by
tho active interpostion of the Conrt oil
Cnancery.
The prayers Of the bill are denied
and decree will be entered dissolvinE
. the injunction, so far as to allow the
: hank to collect the amount OF the de.
= falcatiou proved and covered by the
complainant's bonds, with interest