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

OF the treasurer WAS not one for the
decision of which the law compelled
tho reports TO bb lnado public as avi-
deuco furnished by the Plaintiffs, with
the consequence OF subjecting The trust
fund TO great rick OF losing the So
curity of the hond Whatever authority
Ii might to claimed any o! tho plain
tilf's officers or managers had to accom-
plish or defeat the purpose OF the
statutory trust hy performing the duty
of publishing the roault of the com
mittee's examinations, the dirty of
publication was not imposed TO aid the
| treasurer in obtaining suretios, or to
clothe any one with ths power of nu Ii
flying the statutory requirement Of
| bund.
I "The doctrine Of Graves va. Lebanon
| National Bank, 10 Bush. 3d. cannot be
accepted as discharge OF these sure
! tics without unreasonably imputing TO
| the Legislature an implied intention to
expose the savings OF depositurs to un
necessary and unjust peril By author
izing the protective bond required by
8. of C. 40, Gen. Laws. to be de
stroyed by the protective publication
required by q. . Of ths same chapter
"Thnrs ia M evidence that the re-
/
stool to he published, with any other
object than the execution of the Legia-
ative Command, the purpose of which
did not establish between these parties
the privity of representation necessary
for this defence"
The reasoning of the New Hampshire
court seens to inc to apply with equal
force to the facts in this case; and
after the careful consideration | have
given TO the authorities and principles
applicable to the plain facts Of this
case, am clearly OF the opinion that
the complainant is not discharged from
the obligation Of his contract of surety
ship by reason of the incorrectness OF
the published reports OF the financial
condition of the respondent. To hold
tho contrary would be 10 establish a
preeehent unwaTranted by principle or
authority. and tending to produce dis
astrous confusion and uncertainty IN
the most important business relations.
The second and only remaining ground
upnn which the complainant claims re-.
lief through the interpretation OF this
court, is the har OF the Statute oil
Limitations. The language OF our
statute ia as follows "Section IL. Nc
action should be brought upon any
bond given to the president, directors
and company of any bank, or to any
corporation, by any officer of such bank
or corporation, with condition for bis
good behavior or for the faithful dis
charge OF the dutea of his station, OF
touching the execution Of bis Office,
against either the principal or surcties,
after the expiration of two years from
, the accruing of the cause of such
action.
land no action shall be brought,
and NO proceedings shall be had upOr
/ aoy such bond, or upon any judgment
! thereon against either the principal OF
{ sureties, for any cause Of actor
, accruing after the expiration of si'
\ years from the date nf such bond. "
/ The defalcationH under each OF thu
bonds accrued within six years from
> the date OF the bond and therefore the
J second clause is CLEARLY jnaDpIicable
! and we are only concerned with the frs
. clause, which provides that no nctini
shall he brought against either prinoi
D pal or sureties after the expiration o
two yeurs from the Gauss OF such action
3 1t WAS long ago settled in this State
t that q warrant of attorney to cunfes
J judgment, such Rs We have in the cas-
= under consideration, doe6 not take tn
d case out of tho Statute. This was un
t OF the points darided by our Court o
{ Errors and Appeals in the we'll know
o case of Whitaker ct nj. va. Parker
4 State treasurer, a case which wa
o argued by some of the ablest cUunse
a then at our bar, and which appears il
7 our reports three several times-once
o as reported from tho Superior Court,
r. IIarr. l36 and twice frum the Court O
b Errors and Appeals, . Harr. Alb, an
d Iii. 527. Chief Justice John NJ. Clay
8 ton delivering the opinion of the Cour
which finally disposed of the case.
o So far us this case applies,it of cours
q controls absolutely the decisions of tn
It Court of Chanoery, and shall there
fora review it at s0ue length since
1t settlsH certain principles necessarily IL
J. volved in the decision OF this case.
o 1t was a case where judgment d. 1
n b. was confessed under warrant OF al
l. torney annexed to the bond October 3D.
: 1885, ON the Official bond of Whittake
d as collector of State taxes, and Others
1t his sureties. The bond was dated Ma
: ID, 1881. and the act OF limitation d
l. rected that no action should "b
10 brought upon the official obligation {
j. any collector after the expiration {
J. cause of such action"
D The case was heard in the court he
}: low ON rule to show cause why til
'. Judgment should not be struck of, hay
TO ing boon entered after the bond wa
le harrei by the Statute of Limitation
}, The grjund upon which the Stat
& relied to take the case out OF tho Stat
Id ute was a new promise made by Viii
A. talSer By lotter. 1t was also claimed h
* the counsel for the State that the wal
a. rant OF attorney to confess iudRmet
g. took tho case out OF tho Statute, whilI
TX on the cher hand the opposing couns
o. commended that such an entry Of judi
10 ment was absolutely void because ii
or limitation had run at the time of sntr.
Id The learned Chief Justice entire
le dispuued OF both of these contsntiou
or the one he said "We do not rel
th the case on any supposed effect of
D, mere warrant of attorney as taking II
ID case ont of the Statute . or the otht
ly be remarked, Nothing could be moi
70 erroneous than to suppose that such q
n entry of judgment was absolutely vuit
as because the limitation had run at tt
I'd time. To establish such a princip
r. would be virtually to override all tt
O. leading decisions governing these Sta
n utes, which are held to he impa
of materia and demanding the Same gel
< eral rule of construction. The Statu
six of Limitation admits tho cause
an action or consideration of the actic
IN existing, and merely discharges the d
st PENDANT from tine remody, sn that ne
ne promise without any other consider