15 N.H. 162 | Superior Court of New Hampshire | 1844
The charter makes it the duty of the corporation to lay before the legislature, at the end of every six years after the setting up of any toll-gate, an account of the expendí
The accounts not having been laid before the legislature, the penalty of forfeiture was incurred in terms. But the subsequent accounts were accepted by the legislature as sufficient and satisfactory, and farther powers were conferred upon the defendants by the act of 1833. Has the legislature power to waive the forfeiture ? And if it has, do these facts amount to such waiver ? These are the questions presented to us by the pleadings.
The doctrine of the waiver of a forfeiture by the legislature by subsequent legislative acts does not apply, if, by the terms of the charter, the franchise absolutely determines on failure to perform the condition; for as in such case the corporation has ceased to exist, the doctrine of waiver is inapplicable. The charter in this case provides that the accounts shall be laid before the legislature, “ under forfeiture of the privileges of the act in future.” The meaning of this is, that the forfeiture shall be proved in the regular, legal manner ; upon the institution and prosecution of proceedings in the established course, such neglect of this duty shall be cause of forfeiture. It probably would not be competent for a debtor of the corporation, when sued, to set up by way of defence that the charter of the corporation was forfeited, unless the forfeiture had been established by the judgment of this court. Chester Glass Co. vs. Dewey, 16 Mass. 102; Bank of Niagara vs. Johnson, 8 Wend. 645; The People vs. The Manhattan Co., 9 Wend. 382. That is a matter to be judicially tried and determined, and not to be inquired into collaterally. Where a charter imposes the duty of malting stated I returns of the expenditures and profits, the government alone can enforce a forfeiture for a neglect of the duty. Peirce vs.
The corporation, then, being in existence in the year 1830, did the reception of the accounts and the passage of the act of 1833 constitute a waiver of the preexisting ground of forfeiture, so that it cannot now be insisted on ? It is said expressly, by Parsons, C. J., in The Commonwealth vs. Union Ins. Co., 5 Mass,
In the present case, the legislature did not expressly declare- - that they recognized the corporation as in existence, or confirmed its privileges, but we think no other construction can be given to-their proceedings. It is a reasonable doctrine, that a breach of condition may be waived. It is an important element in the law relating to landlord and tenant. In Goodright vs. Davids, Cowp. 803, Lord Mansfield observed that forfeitures are not favored in law, and where the forfeiture is once waived the court will not assist it. Coon vs. Brickett, 2 N. H. Rep. 163; Doe vs. Pritchard, 5 B. & Ad. 765. There is as much reason for considering the acts of a legislative body as a waiver of a forfeiture, as there is for giving that effect to the act of a landlord. The State can claim no exemption from the ordinary rules which govern contracts, and there is not to be one law for them and another for private persons. The legislature accepted the accounts laid before them in 1830, and the subsequent years, as sufficient and satisfactory; that is, they were satisfied with the accounts as a sufficient compliance with the charter. The act of 1833 is an equally clear waiver of a forfeiture. Notwithstanding what had occurred, they
Judgment for the defendants.