where a privilege is bestowed on private adventurers, which may contravene the right of the public, it must (though given in unqualified terms) be exercised under such limitations as not to take away the public right.

*37] *F. Pollock, contra. The construction of a statute is like that of any other instrument: the question is what was meant? and the nature of the statute ought to make no difference, if the meaning be plain. The rule given in Bac. Abr. Statute, I. 6, (from Plowd, 467,) is to suppose the law-maker present, and to be asked what he intended; and then to give such an answer as he, being an upright and reasonable man, might have been expected to give. The statutes in question here are not analagous to the acts for settling property, which have been compared to private agreements. The enterprize in this case is private; but it is one in which the public are largely interested. Like Waterloo Bridge or the London Docks, it has a mixed object; profit to the adventurers, and public benefit. The London Docks were established by private funds, but were subsidiary to a material improvement in the collection of the revenue; and a monopoly was therefore given to the company. The principle in such cases is, that some public benefit is to be sacrificed to the greater public benefit derived from the undertaking. What that is in the present case, is shewn by the recital of 1 & 2 G. 4, c. xliv. (a) It has been argued that these acts provide no compensation to the public for the rights alleged to be taken *38] from them, and therefore that the intention eannot have been to take away those rights. But the claims of the public were undoubtedly taken. into consideration when the act is passed, and it must have been thought that the general convenience to be expected was compensation enough. Direct compensation is never given to the public by such acts; for instance, in the common clause in turnpike acts, enabling the trustees to take materials from the waste, no indemnity is provided for what is so taken. [Lord TENTERDEN, C. J. That is not so in all cases, and it ought not to be in any; for the undertakers of roads are enabled in this way to take property from many individuals without paying.] They and the public are benefitted by the road being made at a less expense. There are many acts done on public roads which might be considered nuisances but for the necessity of doing them in the ordinary use of the roads; as stopping to take up and set down goods. Other things which might at a former period have been thought nuisances, become tolerable from the altered habits of society. A new kind of carriage, as an omnibus, may at first alarm horses travelling on the road; but it comes into common use, and they grow accustomed to it. The use of a high road by the different parties interested in it, is a continual balance of conveniences and inconveniences. That a public right may be sacrificed in consideration of a benefit by which the public receive compensation, is a doctrine fully recognized in Rex v. Russell, 6 B. & C. 566, though perhaps that case must not be altogether relied upon, as the Lord Chief Justice differed in opinion *39] from the other Judges. [Lord TENTERDEN, C. J. It has the authority of a decision of this Court.] It may be said here, that the parties receiving benefit from the use of the railroad are not the same with those inconvenienced by the alleged nuisance; but this is too narrow a view of the case: the public at large are to be considered, and they are benefitted by the general facilities and advantages given to the commerce of this district. At least there is no improbability in supposing that the legislature took this view of the sub

(a) The preamble recites, that the proposed railway and branches from it will be of great public utility, by facilitating the conveyance of coal, iron, lime, corn, and other commodities, from the interior of the county of Durham to the town of Darlington, and the town and port of Stockton, and towards and into the North Riding of the county of York; and also the conveyence of merchandize and other commodities from the said town and port of Stockton to the said town of Darlington, and into the interior of the said county of Durham; and will materially assist the agricultural interest, as well as the general traffic of that part of the country, and tend to the improvement of the estates in the vicinity of the said railways.

ject in framing the act. It is suggested that the clause authorizing the employment of these engines was introduced only to prevent the adjoining land-owners, or the persons using the railroad, from treating them as a nuisance; but there are no words in the act to warrant such a limitation. The company have exercised their power so as to cause the least possible inconvenience, by using engines of the best construction. Some inconvenience was to be expected, or the legislative permission would not have been necessary. It is urged that the company are empowered to deviate a hundred yards from the proposed line, and therefore ought to have gone to a greater distance from the highway; but it does not appear that this power was given with a view to the protection of the public, nor does the case show that at the particular points in question the deviation could have been made. Neither does it appear that the railroad could have been screened from the highway more effectually than it is. The privilege of travelling this railway with locomotive engines is not confined to the company the public are entitled to do the same. [Lord TENTERDEN, C. J. Only with the company's leave. They have a monopoly as to the use of the engines.] *Cresswell in reply. The doctrine of compensation was certainly carried to a great length, in Rex v. Russell, 6 B. & C. 566, by the learned Judge [*40 who tried the cause; and Holryod, J., in giving judgment, does not ground his opinion upon that doctrine. To apply it to the present case would, at all events be carrying it much too far. In the instance referred to, of turnpike acts giving authority to take materials from the waste, the benefit accrues to the public, the loss only to individuals. Here the company acquire a monopoly in the use of the engines with which the road is now travelled, and they claim to do that which is generally injurious to the public.

Cur. adv. vult.

The judgment of the Court was delivered in this term by PARKE, J., after stating the special verdict, proceeded as follows:

who

The case turns upon the meaning of the eighth section of the statute 4 G. 4, c. xxxiii. and the question is, whether that section gives an authority to the company to use locomotive engines on the railway absolutely, or only with some implied condition or qualification, that they should employ all practicable means to protect the public against any injury from them? and those means were, on the argument, suggested to be, the altering the course of the railroad, or the erection of fences or screens of sufficient height to exclude the view of the engines from the passengers on the common highway. Now the words of the clause in question clearly give to the company the unqualified authority to use the engines; and we are to construe *provisions in acts of parliament according to the ordinary sense of the words, unless such construction [*41 would lead to some unreasonable result, or be inconsistent with, or contrary to, the declared or implied intention of the framer of the law, in which case the grammatical sense of the words may be extended or modified; instances of which are to be found in the case of Eyston v. Studd, Plowd. 463, and Bacon's Abr. statute letter I., referred to during the course of the argument.

Let us, then, consider whether there is any thing unreasonable, or contrary to the express or implied intention of the legislature, in construing these words in their ordinary sense, and without any such condition or qualification as before mentioned. It is clear that the makers of this, and the prior act, had in view the construction of a railroad (with its branches) in a certain defined line, which (1 & 2 G. 4, c. xliv. s. 6, and 4 G. 4, c. xxxiii. s. 3,) had been delineated on a map, deposited with the clerk of the peace, and from which line the road was not to deviate more than one hundred yards, and not into the grounds of persons not mentioned in the book of reference. The legislature, therefore, must be presumed to have known that the railroad would be adjacent for a mile to the public highway, and consequently that travellers upon the highway would be in all probability incommoded by the passage of locomotive engines along the railroad. That being presumed, there is nothing unreasonable or inconsistent in supposing that the legislature intended that the part of the public which should

use the highway should sustain some inconvenience for the sake of the greater *good to be obtained by other parts of the public in the more speedy tra*42] velling and conveyance of merchandize along the new railroad. Can any one say that the public interests are unjustly dealt with, when the injury to one line of communication is compensated by the increased benefit of another? So far is such a proceeding from being unreasonable, that it was held by the majority of the Judges in Rex v. Russell, 6 B. & C. 566, that a nuisance was excusable on that principle at common law; and whether that be the law or not, at least it is clear that an express provision of the legislature, having that effect, cannot be unreasonable.

It is true that the same object, that of giving one part of the public the benefit of the use of these engines, might have been effected without the same injury to the other part using the road, if the act had imposed on the company the obligation of erecting a sufficient fence or screen, at their own cost; or had provided that the line of road should be different at that place; but it is by no means necessary to imply such an obligation in order to make the clause reasonable and consistent, for it has been shewn to be so without it; and it is natural to suppose that if such a condition had been intended it would have been particularly expressed.

For these reasons, we think that the defendants were justified under the above-mentioned section of the 4 G. 4, and therefore that the judgment of the Court should be in their favour. Judgment for the defendants.

*43]

*DOE dem. JONES and Others v. DAVIES.

Testator, after premising that, should his daughter die unmarried, he would not have his estate sold or frittered away after her decease, or left to any body who would not reside on it, but that it should be entailed, and residence be made the absolute groundwork of such entail; devised all his real estate to trustees and their heirs; "But to permit, nevertheless, my daughter S. J. not only to receive the rents and profits thereof to her own use, or to sell or mortgage any part, but also to settle on any husband she may take the same or any part thereof for life, should he survive her, but not without his being liable to impeachment for waste or non-residence, or neglecting necessary repairs. But should my daughter have a child, I devise it to the use of such child, from and after my daughter's decease, with a reasonable maintenance for the education, &c. of such child in the mean time. Should none of these cases happen," he then devised the estate after his daughter's decease to trustees to preserve contingent remainders for the use of his nephew, on condition of residence, or of giving security for his residence when of age, if he should be a minor when the remainder vested. There were other remainders over. He added, that he did not will to restrain his daughter as a tenant for life, but that in case of misconduct in any of the remainder-men, she might, by the advice or consent of the trustees, set aside such a one by her will. He further added, "I recommend it to my daughter, for want of issue to herself, not to leave in legacies above 6007. and that out of my charge on N., which I have also articled for, and entail the rest for the further support of this house:"

Held, that the word "child" in this devise was nomen collectivum; that the daughter took an estate tail; that the estate during her life and after her decease were not of different qualities; and, therefore, that a recovery suffered by her after the testator's death, was valid.

EJECTMENT for messuages and lands in Cardiganshire. The cause came on for trial at Cardigan, at the Lent assizes, 1831; and a special verdict was found, to the following effect:

:

Henry Jones, being seised in fee of the premises in question, made his will in 1793, and thereby devised as follows:-"Having laboured in early life. under various difficulties and incumbrances, I felt it my unavoidable duty, by the strictest care and economy, to lighten those burdens as far as was consistent with the necessary expenses of life (which some might have attributed to covetousness), because my wife and child would be less able to extricate themselves

in case of my death. But now, since it was God's will to allow me length of days, and to enable me to clear my debts, should my daughter die unmarried, I would not have the small estate I have been at the pains of improving and enlarging so, to be sold or frittered away after her decease, or left to any body who would be above residing upon it; but that it should be entailed, and the residence of the several remainders in turn be made the absolute [*14 groundwork of such entail, imminent business and common or neighbourly visits excepted. I therefore give, devise, and bequeath, unto William Lewes of Llysnewidd, Thomas Lloyd of Bronwith, and Lewis Gwynne of Monachty, Esquires, and the survivor of them, and the heirs of such survivor, all my real estate; but to permit, nevertheless, my beloved daughter, Susanna Maria Jones, not only to receive the rents and profits thereof to her own use, or to sell or mortgage any part if occasion requires, but also to settle on any husband she may take, the same or any part thereof for life, should he survive her; but not without his being liable to impeachment for waste or non-residence, or neglecting necessary repairs of the house and farm. But should my daughter have a child, I devise it to the use of such child from and after my daughter's decease, with a reasonable maintenance for the education, &c. of such child in the mean time. Should none of these cases happen, I give and devise my said real estate, from and after my said daughter's decease, unto the said W. L., T. L., and L. G., and the survivor of them, and the heirs of such survivor, in trust to preserve contingent remainders for the use of my nephew John Jones of Carmarthen, now at Eton school, if he shall be at full age at my daughter's decease, and complies with such residence and keeping the houses and farm in good repair, or shall give my trustees security for so doing when he arrives at that age, and supporting a family and servants for the house and farm in the mean time, and to the first and every other son of the said J. J." For default of such residence, he gave the estate to the eldest son of *D. J. Edwards, on condition of residence and taking the name of Jones, and to his first [*45 and every other son. There were other like remainders on failure of male heirs, upon the like terms; remainder ultimately to the testator's right heirs for ever. The will then proceeded as follows:-"My will and meaning for having the house and farm occupied is for the sake of improving the neighbourhood as far as my poor abilities extend, which would be otherwise proportionably impoverished for protecting the parish and supporting its poor. This I am persuaded is my daughter's wish as well as my own, whom I by no means will to restrain as a tenant for life; but in case that either of the remainder-men should ill treat her, or should be likely to turn out an immoral man or a bad member of society, she may, by the advice or consent of the trustees, set aside such an one by her own will and testament, (a) that my intention of doing good in the neighbourhood might not be defeated. I recommend it to my daughter, for want of issue to herself, not to leave in legacies above five or six hundred pounds, and that out of my charge on Nevern" (a distinct property of the testator,)" which I have also articled for, and entail the rest for the further support of this house." Some charitable and other bequests were added. .The daughter was left executrix and residuary legatee.

The testator died in April, 1794. In the following September, Susanna, the daughter, suffered a recovery of the premises, after which she married, and she and her husband took the surname of Jones. They continued in the possession of the premises during their joint lives. Susanna outlived her husband, and after his decease *devised the premises in question to the defendant, to certain uses. She held them during the remainder of her life, and died in 1830, [*46 without having had any issue. A formal entry to avoid fines and recoveries was immediately made by the above-mentioned John Jones, who was one of the co

(a) It seems uncertain whether the following words were not intended to begin the

next sentence.

heirs at law of Henry the testator and of the said Susanna Maria, and on whose demise, among others, this ejectment was brought. None of the trustees named in Henry Jones's will ever joined in making a tenant to the præcipe for suffering a recovery of the premises in question. This case was argued in Trinity Term before Lord TENTERDEN, C. J., LITTLEDALE, PARKE, and TAUNTON, J's.

E. V. Williams for the lessors of the plaintiffs. The principal questions are, whether Susanna Jones took, under her father's will, a life estate or an estate tail? and if the latter, whether or not that estate was barred by a valid recovery? On the first point the lessors of the plaintiff say that the word "child” in the will is a word of purchase and not of limitation. Prima facie and in its proper acceptation it is a word of purchase; it is for the defendant to show that it was meant otherwise. Looking to the whole will, the intention apparently was to put the estate in strict settlement, the daughter taking for life merely. It may be said that an inconvenience arises from construing "child" as signifying only an individual, because, if that child were to die, the estate would then go to its heirs, although the mother might have a child by another husband, which, according to the natural construction of the will, ought to take. It may also be objected, that the first-born child might be a daughter, and would take, according to this *construction, in preference to a son born afterwards; *47] and it may, therefore, be argued that "child" must have been used as nomen collectivum. But it is enough to say that these events may not have cccurred to the testator's mind; and, on the other hand, the intention is clear that the daughter should have a life estate only, with remainder to her “child” individually, as purchaser, or perhaps to her children successively as purchasers, if one or more died, as in Ginger dem. White v. White, Willes, 348. The testator here expressly declares his wish that the estate should not be frittered away if his daughter should die unmarried, and then it should be held on the condition of residence; both which objects might be defeated if she took an estate tail. He desires that any husband of his daughter on whom the estate may be settled shall be liable to "impeachment for waste or non-residence;" but if this were an estate tail the husband might become tenant by the curtesy, and then the condition of residence could not be enforced. The reasonable maintenance left for the education of such child applies to an individual child: taking the word as nomen collectivum the bequest would be too indefinite. The care taken to enforce residence in the limitations to remainder-men, and the desire to improve the neighbourhood, are inconsistent with the supposition that he intended the several estates to be defeasible by a common recovery; and on the same supposition it would have been nugatory to give his daughter a specific authority to bar the remainder-men under certain circumstances. He expressly refers to her in this part of the will as "a tenant for life." In the cases where *48] "son" has been construed as nomen collectivum, either there *were other expressions technically applicable to an estate tail, or that construction was evidently borne out by the general intention of the testator. Robinson v. Robinson, 1 Burr. 38, and Mellish v. Mellish, 2 B. & C. 520, are instances. The rule, that in construing a will the general intent must prevail in spite of inconsistent particular intentions, goes no further than (as is stated by Lord Redesdale in Jesson v. Wright, 2 Bligh, 57, that "technical words shall have their legal effect, unless from subsequent inconsistent words it is very clear that the testator meant otherwise." But here no technical words are found to contradict the expressed intent that the daughter should take an estate for life only.

It cannot be said that the devise of the estates by Susanna was an execution of any power granted to her by Henry Jones's will; and even assuming that it could have been so considered, still, if she was tenant for life only, by suffering a recovery she forfeited both the estate and the power annexed.

But, secondly, assuming that she took an estate for life with remainder to herself in tail, the recovery was not valid, because the two estates were not of