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448 THE BELLONA COMPANY'S CASE.
their consent, by this process of condemnation, is expressly limited
to the case where they, the defendants, cannot agree, and the
owner is a feme covert, &c.; or, in other words, that the defen-
dants must be unable to agree with the owner, and the owner must
also be a feme covert, &c. Because as this provision authorizes
these defendants to take from a citizen his property, against his
will, it must be construed strictly; and therefore the word and can-
not, in this instance, be construed to mean or; and consequently,
that concurrence of circumstances has not been shewn to exist,
which is indispensably necessary, according to the positive requi-
sitions of this law, to enable these defendants to have the land of
the plaintiffs taken from them without their consent.
I admit, that this section of the act, by which the defendants
have been incorporated, is of such a character as to require to be
construed strictly. But the whole must be so taken together as to
carry into effect the chief and manifest purpose of the law; unless
the sense of the expressions used be such as to forbid their being
interpreted in any but one way; and when so taken, that the mode
of proceeding prescribed cannot be so executed as to attain the
object,
It was manifestly the intention of the Legislature to authorize
the defendants to acquire any land they might want for their rail
road in one of two modes; first, by an agreement with the owner
of it; or if it could not be obtained in that way, either because of
the absence of the owner, or because of his refusal to agree; or
because of his incapacity to contract, then the defendants should
have the power to cause it to be condemned to their use at a fair
valuation. This latter mode of acquisition was intended to be
given to them in all cases where an agreement could not be effected.
In case of the refusal of the owner; and in the case of his absence;
and in the case of his inability to contract. In all the similar sec-
tions found in other acts of incorporation, the word or is used in
place of the word and, found in this section; so as, in effect, to
declare, that where the acquisition could not be made because of
the refusal of the owner, or because of his absence, or because of
Ms inability to contract, that then the body politic might condemn,
&c.; and such a turn of expression, it may be admitted, does
much more perspicuously express, what is obviously the intention
of the Legislature, by all such enactments, than in this instance.
Bat the expressions used in this act do, with sufficient clearness,
convey the same intention. The fair sense of the section under
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