Delaware State journal and statesman., 1861-11-29

several payments, provided for in the AL
section uf this Act, within thirty days after ih
same shall have become due and payable thet
all the grants, liberties and privileges hereii
contained and specified, shall from thenceforIl
cease and be Of no etfect.n
The instalment of $4,000 due July lst, 1861
was not paid within thirty days after il became
due Before the thirty days expired the draw.
ings were suspended. After the default, Mr.
frances interest was assigned to John Morris
& Co., by whom the July instalment was then
paid, and the drawings resumed.
| am asked to give legal opinion as TO the
effect Of the 9th section upon the Lottery priyi-
lege on the failure to pay the July instalment
within the time limited for it's payment.
This section, 10 its terms, imports an ipso tactc
forfeiture one that avoids the grants upon the
default of payment, without depending for its
effect upon the option Of the State. But the
necessity of giving to this provision such con-
struclion as will efectuate its manifest purpose,
aud settled course OF judicial Interpretation
compes me CONTRARY to first impressions) to the
conclusion, that the grant, upon IL default OF
payment, is not ipso fdctO void, but pOiaabit
at the election of the Legislature; and that
until such election 10 made. the grantee, or his
assignee, may, on paying the installment in
nrrear, legally exercise the Lottery privilege
This condition Of forfeiture was adopted by
the Legislature, in addition to the bond, as the
most efiectual means il could devise for secur-
! ing TO the benefciaries, throughout the whole
period of twenty years, the semi annual appro-
priations made TO them it being foreseen that
the contemplated public improvements would be
undertaken, or further prosecuted, in reliance
upon these appropriations, and that serious in
jury might result from their suspension. But
upon their hypothesis that by the non-payment
of single instalment within the time limited,
the grant, with all the resources it might afford
for the residue of the term, Instantly and in
eyitably perishes. This provision, instead of in-
creasng, really impaiTs the security of the bene-
ficiaries. For the delay of payment, which
otherwise might cause only a temporary embar-
rassment 10 them tltis construction converts into
a total withdrawal of all subsequent resources
under this Act. And, what would be more un-
fortunate still, this construction enables the
grantee, by his own default, whenever he finds
the grant less profitable than was anticipated to
avoid it, and all his obligations under it, AL
though obligatory upon the State during the full
term Of twenty years, il would be at all times
subject to the will of the grantee, either to
determine it or keep it operative at his election
Thus the provision, manitestly intended to deter
the grantee from default in payment, would
become an encouragement to it though care
fully devised 10 protect the interests Of the hene-
iiciaries it would keep them in constant jeo.
paTdy. Construed us an ipso fdcto forfeiture,
this condition becomes positively mischieyous.
1T makes the giant fel0 de Sc. 1t is true that
the clause Of forfeiture does not, in terms, avoid
the bond as well as the Lottery privilege, upon
the grantees default. But this consequence
legally follows the destruction of the grant. The
Act legalizes the drawings, US means Of raising
the sum appropriated; extends the privilege
throughout twenty years, as term adequate for
the purpose, and manifestly requires the bond
US a security for the payment of the instalments
at periods within which il was contemplated
they might be raised by the drawings. A ACourt
of Equity, considering the right to draw as the
stipulated means of raising the appropriations,
would hold tho obligation to pay as dependent
upon the Lottery privilege; and upon the de-
struction Of the privilege, by whatever means,
would relieve the grantee from his liability upon
the bond. OF course, while the privilege exists,
his voluntary suspension OF the drawings would
not cntitle him to this relief.
| IT, on the other hand, the grant be held to be
upon non payment, not void but voidable, at the
option of the Legislature, the beuefcaries are
not ut the hazard Of au entire loss of their re-
sources under this act, by the grantees default,
either from temporary inability or desire
TO determine the grant. Under such a con-
struetion, as the privilege remains until the
Legislature shall otherwise elect, either the
grantee may be still held upon the bond, or il
the bend be unreliable, the grant may be de
| cared forfeited, aud a new one made with better
security or the Legislature may wholly abolish
the Lottery system, without infringing any pri'
vate right, placing the grant at the absolute
disposal of the Legislature, while the grantee is
held uhreleased, except at the option Of the Lee
gislature. This construction gives 10 the pro-
vision all the efficacy it could possibly have.
The question, how far the manifest policy of a
statutory provision shall control the natural sense
of its words, sometimes perplexing, is in thii
case, settled by authority. Conditions forfeitinl
granted rights for the non payment Of money
though never before connected with public
franchise, frequently occur in private contracts
and nave received settled Judicial construction
Upon considerations such as before suggested
though to none of the cases applying so forcibly
-as this, il is held, that by uniform rule O.
construction, without reference to the Language
employed or to the nature Of the instrument
such condition renders the grant not void, bu
voidable at the grantOr's election.
Examples of this rule are found in the case o
leases determinable upon the non payment o
rent on an appointed day also, Of contracts fol
the future conveyance of real estate to be void
upon the non payment of the purchase money
The rule was applied in the English courts ii
the case of a lease of coal mines for ninety min
years, with prOViso that ''if the same shout,
stop or cease working at any time two years, th
lease should be deemed poid to all intents and pur
poses :" Barn. & AID. 40l also, in the case o
a lease for years, with proviso, that il the ren
should remain unpaid for forty days after th
dny of payment, "the demise, and every article
clause and thing therein contained should cease
determine aud be utterly void to all intents AM
purposes, anything therein contained to the con
trary thereof in any wise, notwithstanding"
NJ. 4 S. 12l In this country the rule was aI
Piled in the case of lease for ten years, at
early rent of S3, 800, payable quarterly. Th
lease was expressed to be on condition Of th
punctual payment of the rent which was furthe
secured BY collateral bond Of the lessee, and
surety for So, 800; aud it was by the lese 'cove
nauted and agreed, that in case the rent due o
any quarter day should remain unpaid for th
space of thirty days, that then and in that cas-
the lease should cease and determine and the bon
should be forfeited, and the amount there
should be forthigHh paid to the lessor, and shOu
/ be considered us liquidAted damages for Il
$ non performance of the lease" Denio, 5lI
y The same construction has been applied to col
Y tracts for the sale of real estate. CoWen, 27l
Il aud cases cited.
This rule is applied, not only against the less
+ seeking to set up his own default against clai
s for rent accruing after a forfeiture, but al
Q against the lessor when, after M act of waive
e he seeks to enforce the forfeiture. 9 Barn.
Q Cress 519; Meps. & Wells 402 Also again
a a third person, being purchaser of lease aft
e IL forfeiture which had been waived by the lessC
, Upon bill for specific performance, the pu
j. chaser's executors objected to the title as vO
by the forfeiture, but they were decreed to a
10 cept it, and the decree affirmed by the Lo
5. Chancellor Eldon. Russ g. R. l70.
N In the old English cases distinction "
10 made between condition which, upon 4
J. tenants default, declared the lease to becor
D. void, and one which only reserved TO the lessor
10 right Of re-entrY. This distinction has lo
IN since been overruled.
pc No reason is perceived why this rule Of "a
struction should not apply as well to grant
the st tie, as to a private contract On the CO
trary, the reason Of the rule applies with great
force to grant like the present one, as /