3 Del. Ch. 225 | New York Court of Chancery | 1868
The application is one made to the sound discretion of the Court. With respect to the first proposed issue, it does not appear to me to be such an one as, in the proper exercise of that discretion, should'be ordered. The matter involved arises upon complicated accounts which can be tried by the Court more satisfactorily than by a jury. Besides, the time of the alleged defalcations is admitted, by the defendant, to be such, that if the office of cashier was an annual one, the sureties are not liable.
The object of the second issue, as proposed, is, to establish the real defense, which is, that even if there were defalcations, they are not covered by the two bonds of these sureties. The ground on which this defense rests is, that there was "an election in each year by the general board, the effect of which was to constitute this an annual office, the term created by one, expiring with the next, and the bond covering only the transactions of the year which constituted the term for which it was taken.
Now this defense, as set up by the bill, embraces two elements ; first, that elections were held; this is a matter of fact; secondly, their effect in constituting the office an annual one. The answer admits the first and denies the
I can direct no issue in any way applying tó this subject, because,
First. The fact of an election every January, is admitted, and were it not, it rests upon documentary evidence.
Secondly. The question whether “ the election ” created a new office or only recognized and sanctioned an authority already existing, and which even without it would have continued, is a purely legal conclusion. In some sense a fact, it is, yet, a conclusion from other facts.
The bill so puts it, as a conclusion resting upon acts, admissions, usages, &c. But suppose, as complainants will contend, that the simple transaction per se constituted an election in the proper sense, and the office an annual one, — still it is no less a legal conclusion though brought nearer to the premises.
What, then, would be the result of an issue embracing, in any terms the question, whether the election made the office annual, or it remained indefinite ? Simply a struggle before the jury as to the legal effect of uncontroverted facts. They would not decide this without instruction from the Superior Court, which would, in effect, transfer the case to that Court.
The application must be refused.
