Grimshaw v. Mayor & Council , 5 Del. Ch. 183 ( 1877 )

The Chancellor.

I shall not enter into a general discussion of the principle applicable to a case where a concealment of fraud has been proved to exist on the part of the defendant in a suit brought against him after the discovery of the fraud has been made, but not within the period mentioned in the-statute in that respect, to make him account for the amount of said fraud, because I am of opinion that the principles adjudged in cases of that kind, where the Statute of Limitations-has been pleaded as a bar to the cause of action, are not applicable to the ease before me.

It is true, as contended by the solicitors of the city council of Wilmington, that where one person defrauds another of his just rights, and the fraud is concealed at the time of' its commission, and not discovered within the period embraced by the Statute of Limitations, 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 actions.

This principle does not apply to the present case. The-judgments mentioned in these proceedings were not entered within the period prescribed by law. They were therefore nullities. The judgments themselves being absolutely void, and the entry thereof being absolutely prohibited by an Act-of the General Assembly, the several executions issued upon them cannot have any possible legal effect.

The sheriff could not justify any act done under them.. The complainant might lawfully resist their execution; and he certainly has, as a surety, the right to avail himself of their illegality in an attempt to enforce, as against him. as surety for Kilgore, a claim for the amount of Kilgore’s defalcation in office, even if such defalcations were proved to exist-

Upon the question of the existence of such defalcations at a period subsequent to two years from the date of the bond respectively, or the termination of Kilgore’s term of office,, upon which the judgments were entered, I do not feel bound, to express any opinion.

If it was necessary to speculate, good reasons might be assigned why this limitation was prescribed by the General Assembly in respect to the entry of judgments against the treasurer of the city of Wilmington. Diligence upon the part of the authorities of the city to adjust and settle the accounts of the treasurer would thereby be insured, while delay and procrastination on their part might be attended by serious loss.

But speculation in respect to the reasons why the law was passed is unnecessary. It exists.

I might very properly have dismissed this case, with the views I entertain in respect to the right of the city council of Wilmington to proceed in their judgments and executions; but, as it has proceeded to a final hearing and argument without a question of equitable jurisdiction being raised,—

I will decree that the injunction heretofore awarded in this cause be dissolved without prejudice, so far as it restrains the execution and enforcement of the judgment entered against the complainant in the Superior Court of the State of Delaware in and for New Castle County, being No. 591 to the November Term, 1874; and in all other respects that the injunction be and remain perpetual, with direction to the -complainant to apply to said superior court for a rule upon the plaintiff in said judgment to show cause why judgment No. 594 in said superior court shall not be set aside, annulled, ■■and vacated.

This course I deem respectful to the superior court, in order that that court may have an opportunity to purge its own records, if it shall deem proper to do so; and I can have but little doubt as to what the action of that court will be if -such application to it be properly made.