the former office, or an amotion from it. In Rex v. Trelawney, 3 Burr. 1615, Lord Mansfield puts it on the former ground; and that opinion is adopted by Buller, J. in Milward v. Thatcher, 2 T. R. 87. *Lord Kenyon in Rex

v. Pateman, 2 T. R. 777, puts it on the latter. See also the opinion of [*25 Littledale, J. in Rex v. Hughes, 5 B. & C. 886.

If this view of the subject be correct, it seems to follow that the acceptance of the second office will not absolutely avoid the first, unless it be made by, or with the privity of, that authority which has the power to accept the surrender of the first or to amove from it.

Upon reference to the authorities it will be found that in most, if not in all cases where the office has been held to be absolutely void, a surrender to and acceptance by the same person who appointed to the second office, or an amotion by them, would be good.

A forester by patent for life, or warden of a forest, made justice in eyre of the same forest pro hac vice, 4 Inst. 310; a justice of C. P. made justice of K. B., Dyer, 158 b.; a remembrancer of the Exchequer for life made a Baron of the Exchequer, Dyer, 197 b.; a flag officer appointed to another command, Johnstone v. Margetson, 1 H. B. 261,—are all instances in which both appointments are made by the crown. The case of a town-clerk made mayor, Sid. 305, a jurat made town-clerk, Milward v. Thatcher, 2 T. R. 81, a burgess made alderman, Rex v. Hughes, 5 B. & C. 886, all appear to be cases of appointments. by the corporation at large. In Rex v. Tizzard, 9 B. & C. 419, it does not appear by the pleadings in the case, whether the mayor, alderman, and bailiffs who appointed to the office of town clerk, had or had not the power of accepting the resignation of that of alderman; and as this objection was not stated, we do not *consider the case as forming an exception to the position now laid

down.

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The cases of a forester appointed by the crown and elected verderer by the freeholders, Sir Charles Howard's case, Sir W. Jones, 293, a coroner made a verderer, Com. Dig. Officer, G. 4, only shew that the acceptance of the new appointment is a ground of discharge from the old one by the crown; and that this is so further appears from the argument of Noy in Sir W. Jones, who said, "that he had seen precedents that divers offices had been seized because one had so many, quod eis intendere nequit." In Sid. 305, where it is said that the Chief Justice cannot be prothonotary in his own court, it is not said that by accepting it the offie of Chief Justice would be void.

Upon principle, not conflicting with any of the authorities, it seems that an officer cannot avoid his office by accepting another, unless his office be such as he could determine by his own act simply, or unless that authority concurs in the new appointment, which could accept the surrender of, or amove from, the old one.

This defendant is an alderman, and, by virtue of that office, a justice; the office of alderman he could only surrender to the corporation at large, or, by charter or prescription, or by-law, to a select body.

That the assent of the corporation to the resignation of an office is necessary appears from the following authorities:

In 2 Roll. Abr. 456, it is said, that an alderman by the assent of the corporation can resign and relinquish his office to the corporation, for there is no reason why he should be bound to execute and continue in his office for [*27 all his life, against his will; and the corporation may take such surrender of right without any power given by the charter to take it. In Rex v. Tidderly, Sid. 14, it is laid down that every corporation, as a corporation, has power to take a resignation. In Taylor's case, (Popham, 133, reported, 2 Roll. 11, as Hazard's case), the question was, whether an alderman might surrender or not? Coventry, solicitor, said he could not, and cited Medlicott's case, where the opinion of the Court was, that he could not; but, per Dodderidge, "perhaps they would not accept his surrender." In Com. Dig. tit. Franchises, F. 30, it

is said, every member or officer of a corporation may resign his place or office. Nothing is mentioned of acceptance; but as it is followed by these words, "and a corporation has power to take such resignation," it seems to be implied that the corporation must accept it in order to render it valid. Rex v. The Mayor of Rippon, 1 Ld. Raym. 563, and Rex v. Lane, 2 Ld. Raym. 1304, are authoriies to the same effect.

If, then, the assent of the corporation at large or a select body be required to make a resignation valid and complete, the defendant could not in this case have effectually got rid of his offices of justice and alderman merely by his own act, and the adoption of it by the other justices and aldermen in session assembled; and if so, there can be no implied surrender of those offices by acceptance of an incompatible appointment from them, assembled and acting in the same character.

The offices of justice and alderman, therefore, did not become absolutely void by that acceptance.

*28] *It must, not, however, be supposed, that in laying this down in the present instance, the Court mean in the slightest degree to trench upon the rule, that where two offices are incompatible they cannot be held together. This is a rule founded on the plainest principles of public policy, and which has obtained from very early times.

It is not perhaps necessary for the Court to decide more, than that the circumstance of the defendant being appointed to, and accepting the office of treasurer, did not vacate that of alderman and justice. But as it may be objected, that if so, the two offices may yet be held together, it may be as well to add, that the acceptance of the treasurership may perhaps be the ground of a motion by the corporate body; and in addition, that it seems to us that the defendant was not a person capable, under 12 G. 2, c. 29, s. 6, as long as he was an alderman and a justice, of being nominated and appointed treasurer. Though there be no direct prohibition in the statute of such an appointment, it is clear that it never contemplated the possibility of the justices appointing one of themselves. By the sixth section they are to appoint a person resident in the county, he first giving sufficient security, and he is to pay the money in his hands according to their orders; and by the seventh section he is to keep books of entries of the sums received and paid by him, and to deliver in accounts, upon oath if required, of such sums, and to lay before the justices at sessions proper vouchers for the same. He is, moreover, by the eleventh section, to be continued in office or to be removed at their pleasure, and to be allowed such sum for his care and pains in the execution of his trust, not exceeding 207. by the year, as they in their dis*29] cretions shall *think fit. All these provisions show that he is intended to be a mere ministerial officer under the justices, and not to be one of their own body. And therefore, if, as we think is the case here, the justices of the county of the city of Norwich and Mr. Patteson could not, for the reasons above given, by their own acts, the justices by appointing to, and Mr. Patteson by accepting, the office of treasurer, vacate his office of alderman and justice, to which under the king's charter he was elected by the citizens duly assembled at a corporate meeting for that purpose, and the offices could not be held together; it follows, as a necessary consequence, that the defendant was not eligible to that office, and, if he still fill it in conjunction with his character of alderman and justice, may by some legal proceeding be amoved, and this conclusion is materially strengthened by the case, before cited, of Rex v. Gayer, 1 Burr. 245.

For these reasons we are of opinion that the judgment of the Court must be for the defendant.

This judgment must be considered as that of my Brothers, Littledale, Taunton, and myself. My Brother Patteson has taken no part in the consideration of the case, for private reasons. Lord Tenterden, I believe, entirely concurred in this judgment. (a) Judgment for the defendant.

(a) Lord Tenterden, during the argument, stated that, on his being appointed a Judge of this Court, he surrendered the patent creating him a Judge of the Common Pleas.

*The KING v. EDWARD PEASE and Others.

By an act reciting that a railway between certain points would be of great public utility, and would materially assist the agricultural interest and the general traffic of the country, power was given to a company to make such railway, according to a plan deposited with the clerk of the peace, from which they were not to deviate more than 100 yards. By a subsequent act the company, or persons authorized by them, were empowered to use locomotive engines upon the railway.

The railway was made parallel and adjacent to an ancient highway, and in some places came within five yards of it. It did not appear whether or not the line could have been made, in those instances, to pass at a greater distance. The locomotive engines on the railway frightened the horses of persons using the highway as a carriage road. On indictment against the company for a nuisance: Held, that this interference with the rights of the public must be taken to have been contemplated and sanctioned by the legislature, since the words of the statute authorizing the use of the engines were unqualified; and the public benefit derived from the railway (whether it would have excused the alleged nuisance at common law or not) showed at least that there was nothing unreasonable in a clause of an act of parliament giving such unqualified authority.

INDICTMENT stated that before and at the time, &c. there was a certain king's highway, in the parish of Stockton-upon-Tees in the county of Durham, leading from Stockton to Yarm, used by the king's subjects with horses, carriages, &c.; and that during all the time aforesaid there was in the same parish an iron railway and tramroad, leading from the river Tees near the south-west end of the town of Stockton towards and unto Wilton Park colliery, which railway was raised to a great height, to wit five feet, higher than the said highway, and was parallel and adjacent to a part of the same, in the parish, &c., of the length, &c., and breadth, &c., between Stockton and Yarm aforesaid. And that the defendants on, &c., and on divers other days, &c., set up and placed on the said railway so parallel and adjacent, &c., divers, to wit ten locomotive engines to be worked and propelled by steam along the said railway, together with divers, to wit, &c., furnaces and stoves on each of the said days and times employed in working and propelling the said engines by steam; and did on the said days, &c., use the said engines so worked and propelled by steam, and the said furnaces and stoves respectively so employed in working and propelling the same by steam; and did *on, &c., put, place and burn in the said engines so worked, &c., and in the said furnaces and stoves so employed in working, [*31 &c., parallel and adjacent to such part of the said highway, divers large quantities of coke, coal, charcoal, wood, &c., close to the said part of the said highway, and thereby corrupted the air and caused noisome smokes, &c.; and that they did on the said days, &c., attach to each of the said engines a great number, to wit the number of twenty-six, of wagons loaded with coal, and unlawfully caused the said engines so worked by steam, with the said waggons so loaded with coal, attached thereto, to move along the said part of the said railway so raised, &c., and parallel, &c., for a great length of way, to wit one mile, with great noise, force, and violence; and did then and there with the said engines, furnaces and stoves, and the fires burning therein as aforesaid, exhibit terrific and alarming appearances, and make divers loud explosions, shocks and noises, whereby it became dangerous for the subjects of this realm to go, return, pass and repass on, through, over and along the said common highway, near to, parallel and adjacent to the said railway and tramroad; to the great terror, &c., and common nuisance of all the liege subjects then and there going, returning, &c., with their horses, carts and carriages, in, through, and along the said part of the said highway so parallel, &c. There were several other counts, dividing and generalizing the statement. Plea not guilty. The indictment was tried at the Yorkshire Lent assizes 1832, by a jury of that county (on a suggestion that an impartial trial could not be had in the county of Durham), before Parke, J., and a special verdict was found.

*32] The verdict described the respective situations of the highway and of the railway or tramroad as mentioned in the indictment, adding, that the latter was constructed under and by virtue of the acts of parliament after mentioned, or one of them. It also stated that the railway, which was adjacent and parallel to the highway for more than a mile between Stockton and Yarm, was separated from it only by a low hedge, except in some places where there were small plantations; and that in many places the two roads were not more than five yards apart. That the defendants (under the authority of the Stockton and Darlington Railway Company) did put upon the said railway, so being parallel, &c., six locomotive engines worked by steam, for the purpose of drawing coalwagons thereon, which engines (under the direction of the defendants) travelled. on the said railway, drawing coal-wagons, by night and day, and, when so travelling, emitted great quantities of smoke and steam, and made a great noise, and by their appearance and noise alarmed the horses of many of the king's subjects when travelling along the said highway, and thereby occasioned many accidents, and impeded and annoyed his majesty's servants in passing and repassing along the highway with their horses and carriages. But the verdict went on to state, "that the locomotive engines were of the best construction known at the time when they were constructed, and that the said defendants used due care and diligence in the management of them, and from time to time adopted such improvements as had been discovered in the erection and management of locomotive engines worked by steam; and that the said defendants used the said engines as aforesaid for the purpose of facilitating, and did thereby facilitate the *33] transport and carriage of coals and other *goods upon the said railway and tramroad, and that the public obtained coals cheaper and much better by the use of the locomotive engines, but that many coal-wagons are drawn on the railroad by horses." It was further stated that by the statute 1 & 2 G. 4, c. xliv. certain persons were united into a company, and created a corporation, under the name of The Stockton and Darlington Railway Company, for the purpose of making and maintaining a railway or tramroad from the river Tees at Stockton to Witton Park colliery, with several branches therefrom, all in the county of Durham. And that by another statute, 4 G. 4, c. xxxiii., (which was stated in the title to be made for the purpose of enabling the said company to vary the line of their railway and of some of its branches and to make an additional branch, and of altering and enlarging the powers of the former act,) it was enacted, in sect. 8. "That it shall and may be lawful for the said company, or any person or persons authorized or permitted by them, from and after the passing of this act, to make and erect such and so many locomotive or moveable engines as the said company shall from time to time think proper and expedient, and to use and employ the same in or upon the said railways or tramroads, or any of them, by the said recited act and this act directed or authorized to be made, for the purpose of facilitating the transport, conveyance, and carriage of goods, merchandize, and other articles and things upon and along the same roads; and also of passengers."(a) The verdict found that some of the defendants were members, and the rest servants, of the company. This case was argued in last Trinity term, before Lord TENTERDEN, C. J., LITTLEDALE, PARKE, and TAUNTON, Js.

*Cresswell for the crown. *34] The company were not justified in using the locomotive engines, as they have, to the detriment of the public. The statutes under which they act did not oblige them to come within so short a distance of the highway; for by 1 & 2 G. 4, c. xliv., s. 7, it is enacted, that the company in making their railroads shall not deviate more than 100 yards from the course or direction laid down in the map or plan deposited with the clerk of the peace, and referred to in sect. 6: they might, therefore, have deviated to an extent not exceeding 100 yards, and by so doing they could have gone far

(a) Locomotive engines were not mentioned in the former act.

enough from the highway to avoid endangering the public. They must contend, on the other hand, that they have a right to do all that the letter of the statutes authorizes, however prejudicial to the public, and although not necessary to their undertaking; for it was not necessary that their railroad should approach, in parts, within five yards of the highway, or be separated from it only by a low hedge. Plowden, in commenting upon Eyston v. Studd, Plowd. 465; (see also Stowel v. Lord Zouch, Plowd. 363,) says, "It is not the words of the law, but the internal sense of it, that makes the law; and our law, like all others, consists of two parts, viz. of body and soul; the letter of the law is the body of the law, and the sense and reason of the law is the soul." The restraint, if the act is of a restraining nature (as in Eyston v. Studd, Plowd. 463,) or, if it be an enabling act, the power, is not to be extended against common right and reason; but the operation of the statute, if opposed to these, must be controlled by the common law. Thus it is laid down in Dr. Bonham's case, 8 Rep. 118, b., that if an act of parliament gives the lord of a *manor conusance of all pleas [*35 within his manor, he shall not have conusance where he himself is party. In Emanuel v. Constable, 3 Russ. 436, where the question was upon the statute 25 G. 2, c. 6, s. 1, which enacts that if any person shall attest any will or codicil, to whom any devise, legacy, &c. shall be thereby made, such devise, legacy, &c. shall be void as to him;" the Master of the Rolls, referring to the intention and not the letter of the statute, held that it did not extend to wills of personalty; and the same point was ruled, upon the same principle, in Brett v. Brett, 3 Addams's Rep. 210. These last were cases upon a public act: the statutes in question here are, in their nature, private. Such statutes have, in modern cases, been considered as agreements between the adventurers and the public, or a portion of it. Lord HARDWICKE says, in Hornby v. Houlditch, 1 T. R. 93, note (a), that private acts of parliament, introduced only for the settlement of particular estates, ought to be considered only as common conveyances, and directed by the same rules of law, and therefore cannot be taken to extend as a discharge of any person's right not mentioned. Now the present statutes provide only for the rights of the adventurers, the land-owners over whose property the railroad passes, and the portion of the public who may use it. By 1 & 2 G. 4, c. xliv. s. 1, it is enacted, that the proprietors shall execute the powers thereby granted, doing as little damage as may be, and making full satisfaction, as after mentioned, to the owners of, and all persons interested in, any lands or hereditaments which shall be taken, used, removed, diverted, or injured, for all damages to be by them sustained in or by the execution of the said powers; sections 16 and 23 provide for the making of such compensation. If it had been intended that the general rights of the public should be taken away by this act, it may be presumed the legislature would also have provided some compensation for them; but they have none. It cannot be said that the company, having bought the land for the railway, might have used what engines they pleased upon it without an act of parliament. At the time when the first statute passed there were no locomotive engines. Without a special provision by a new act they would have been a nuisance to the public, (who, by the 1 & 2 G. 4, c. xliv., s. 81, were authorized to use the railway with carriages and horses on the conditions there described,) and perhaps also to the proprietors of the adjoining lands and houses. The statute 4 G. 4, c. xxxiii., was therefore necessary to give the company power, as against those land-owners, and that part of the public, to use locomotive engines; it does not follow that the rights of the public in general are concluded by the act. In Rex v. Sir John Morris, 1 B. & Ad. 441, a local act enabled proprietors of any lands, &c., to make railways through such lands, and across and along any road or roads to communicate with the railway of a certain company; and there PARKE, J. observed that, supposing this clause to be taken alone, it must at least be understood with the limitation that, where a railway was laid upon another road, sufficient space must be left, independently of it, for the public to pass. That case shews that

and

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