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.
The opinion of the court was delivered by BODINE, J.
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 restraint, 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 been discovered had the township authorities made proper audit. However, our statute of limitations is specific and confines actions to a period of nine years after the date of the bond and not nine years after the cause of action accrues. 3 Comp. Stat. p. 3165 § 5.
The findings of fact being supported by the evidence the decree is affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 15.
For reversal — None.