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

voluntarily appearing to the plaintiffs
declaration aud confessing the Judg- |
meut in that suit. Il
'But the language of this part OF |
the statute is precisely thu same with !
that of other rarts. which have alwnys |
received the samo judicial construction,
and that ia that suits may Ito com
menced, although the time fixed ny |
ths statute for it bus expired, and
although tho very record itself DIS
clones that fact. For the law will not |
presume either that tine defendant is
entitled to ulesd ii or that il SO en-
titled be will plead 1t. F"
There ia more to the same effect, but
| have cited the caRs sufficiently to
chow fully tho reasoning of Chief
Justice Clayton, as we'll as the
propuaitions he 40 distinctly luid down.
This brings me to the consideration
of the only decision in the Court OF
Ohancery in this State which bear at
all upon the point Under consideration
the decisions 10 which We must look
| in order 10 ascertain whether tho ques-
tion ia to he considered as already
settled md determined 80 far as this
court ia concerned, or whether IT is
still to be discussed and determined as
| an open question.
The first case ia that Of George W.
Sparks ct oil. vs. ths president, directors
and company OF the Farmers Bank Of
the State of Delaware, 3 Del, Chan. p.
275, decided by Chancellor Bates in
1863. III years prior to the dnte OF the
first bond in this case. Like the casa
under consideration, it was a bill in
equity By the sureties in official bond
Of defaulting bank officer to restrain
the bank from proceeding at law to
collect from compliments the amount
ut certain alleged dofalcationa OF
IIeHton, their principal, committed
while cashier OF the Farmers Bank at
Wilmington.
| have already cited this case 10 diH-
cussing another question. | shall con-
sidar it now solely in relation to the
bar OF the Statute of Limitation. The
Hon. 4. +. Bayard was counsel for the
cOmnlainants, the Hon. Anthony liig'
gins and the late Judge Bradford were
counsel for the bank. Chancellor Bates
says: There remains third and last
ground of relief taken for the sureties
that IS, that under the statute bar
ring suits on official bonds after two
yeara from the accruing of the cause OF
action, the sureties are discharged as
to so much Of the deialcation as
! occurred more than two years previous
TO tho entering of judgment on the
bond, which was in March, 1867. p"
After giving the dates and amounts
! of the checks representing the de-
falcaton and referring to the punt
raised on thu argument, that the de,
! faulting cashiers failure to pay when
his defacation was discovered, con-
: stituted a new defalcation, the Chan
cellor Gays: 1t is not necessary to de-
cido THAT question; for even surprising
! the abstraction OF 50, DAG 40 on l,ecem.
! her lat, 1864, to be the only breach OF
the bond as to that sum, still the bank
is entitled to collect il.
! Thsir equity TO do 80 arises out OF
the fact that the deialcation was q
r fraud concealed from the bank with
] respect to which court OF equity will
( not permit the Statutory bar to be set
up until the lapse of the prescribed
. term after the, discovery of tho fraud.
, at is settled and familiar principle
that q court of equity will not permit
, a party to make an demonstrations use
t Of an advantage gained at law, hence
] 1t will deprive him OF defences when
set un TO protect fraud, though such
I defences DO founded upon the most
F. positive Statutory enactment.
Then after citing and discussing a
number of authorities, the learned
Chancellor thus concludes: "There is
nothing in this case to except 1t from
9 the operation Of the rule 1t is true
! that equity will not relieve against the
bar OF the Statute in fyvor of party
! who has been in laches in not using
8 means within his power to discover the
u fraud. But clUse supervision by large
moneyed corporations over their officers,
|, sufficient to insure the speedy detection
of fraud, Is not practicable, and II il
Il were so would becoms intolerable.
u These institutions must uDavoidably
:. trust their officers and rest upon the
u official bona as the guaranty for theii
fidelity. IL is to this end that the
70 bonds are taken. Their value would bt
. destroyed and their purpose defeated
y we're it in the power of shrewd cashier
Il to ahsolve himself and his Bureties by
i covering up his frauds for two years.
"If the rules applied to this cass seem
!. to bear hardly upon tho sureties, il
t. must bs remembered that by their bont
|, they undertook for the cashiers fidelity
" absolutely and at all events, and on
!, gagged Internationally to make good biz
y default They had the power tn limi
l. their responsibility expressly to ont
10 year, or TO make it subject to any con
If ditions which might be agreed upon
If but this was not done.
10 1T would b8 u prudent practice ant
ono beat securing all parties, that tn
}. obligation OF Huch bonds be expressl!
Ie limited to one year, and that upon thu
!. giving of new bond by an officer re
is elected, an examination bH made sufti
]. cient to tsst his integrity at that time. !
te This case, it will be observed, is th,
t. sxact counterpart 40 far as the applica
T. bility OF the bar Of the Statute of Limi
" tation is concerned to the case unde
/ consideration, for it can make no differ
il ence in principle that the period q
st successful coneealmeEt in the prasen
81 case 10 much longer and the consequen
= loas much greater.
10 The second dscision to which / refe
', is that OF Chancellor Salisbury in th
" case OF Grimshaw vs.. Mayor and Coun
8. Gil of Wilmington, 5 Del. Chan. p. lS3
81 This waa hill in equity by one of thu
a sureties in official bonds of Joseph IL
10 Kilgoro, a defaulting city treasurer t
pr restrBin the city from further proceed
re ings at law to collect from complaiuan
in the amount of certain alleged defalca
j, lions committed by Killgore, his prn
10 cipal, while city treasurer OF Whining
10 ton. The reported case contains in th
le statement of facts the following: 9Th
t. act of the General Assembly OF thi
ri State in respect to entry OF judgment
n on the official bond of the city treasur Q
90 | of the city nf WiltninOtnn, nruyide