Twp. of Waterford v. Md. Cas. Co. of Baltimore, Md.

• Decision Date: 09 October 1935
• Docket Number: No. 93.,93.
• Citation: 181 A. 66
• Parties: TOWNSHIP OF WATERFORD v. MARYLAND CASUALTY CO. OF BALTIMORE, MD.
• Court: New Jersey Supreme Court

181 A. 66

TOWNSHIP OF WATERFORD

v. MARYLAND CASUALTY CO. OF BALTIMORE, MD.

No. 93.

Court of Errors and Appeals of New Jersey.

Oct. 9, 1935.

Syllabus by the Court.

1. a statute of limitation confining an action upon a bond to a period of nine years after the bond was written cannot be enlarged in equity merely because the principal on the bond was not earlier discovered a defaulter.

2. Equity does not require that to be done which cannot be done.

Appeal from Court of Chancery.

Suit by the Township of Waterford against, the Maryland Casualty Company of Baltimore, Maryland. From an adverse judgment, complainant appeals.

Affirmed.

D. T. Stackhouse, of Camden, on the brief, for appellant.

Cecil W. Rotzell, of Camden, for respondent.

BODINE, Justice.

The township of Waterford sought to restrain the defendant from pleading the statute of limitations upon an action upon a surety bond first written in 1916 and renewed each year up to and including 1927, and, secondly, to compel the defendant to produce a copy thereof. The learned vice chancellor quite properly found that there was no special equity which would require the restrain, and that the production of the copy of the bond was impossible, since it had long since, in good faith, been destroyed as obsolete.

It is urged that the principal fraudulently concealed his peculation. The proofs do not so indicate. He kept books and issued receipts from which his peculations could have...