1. A devise vests the freehold in the devisee without entry.

2. Quære-Whether a disclaimer of the estate devised must be by deed.

3. But, at all events, it is no disclaimer for a person to refuse taking under a devise, he giving as a reason, that he claims the property in question under some other title. The disclaimer (whether it should be by deed or not,) must be of the property devised.

This ejectment was brought to recover the possession of the freehold part of a messuage, farm, lands, and premises, in the parishes of Elmswell and Norton, in the county of Suffolk.

The declaration contained two demises— one on the 2d March 1824; the other, on the 2d February 1824.

The cause was tried before Mr. Justice Gaselee, at the Summer assizes for the above county, held in 1824, when, by the direction of the learned Judge, a verdict was found for the plaintiff, with liberty to the defendant to move to set aside the verdict, and enter one for himself; and the Court of King's Bench, upon that motion being made, directed this case to be stated.

CASE.

Ann Brand being seised in fee of the estate in question, on the 7th October 1813, duly executed her last will, which contained a devise in the following words :

"I give and bequeath to Miss Jane Smyth, of Ogle-street, London, all that messuage, lands, farm, and hereditaments, situate at Elmswell, or in any other parish in the county of Suffolk, during the term of her life, keeping the said estate in good repair. I also give to the said Miss Jane Smyth the sum of 500l., for the purpose of discharg ing the fines and other fees, on her admission to the copyhold part of the said estate. I also give to the said Miss Jane Smyth, all my books, and Sir Henry Smyth's miniature picture and from and after her decease, I give and devise the said messuage, farm, lands, and hereditaments, situate in Elmswell, or in any other parish in the county of Suffolk, unto Sir Henry Smyth, of Beer Church, in Essex, and his heirs."

The testatrix died in March 1814, without revoking her said will; and the lessor of the plaintiff and the defendant are the devisees therein named; the latter by the name of Sir Henry Smyth. Shortly after the death of the testatrix, the Rev. Charles Cooke, who was one of her executors, called upon the lessor of the plaintiff, for the purpose of paying her the said legacy of 5001. when she refused to receive the same; and she had not received it at the time of trial. Early in the year 1815, and three or four times afterwards in the course of that year, and once in the next, Mr. John Graham Serjeant, the attorney of the defendant, by his desire, called upon the lessor of the plaintiff, on the subject of the devise. She claimed the estate as heir-at-law to Sir Harvey Smyth; and on all these occasions she declared she would never accept any benefit under Mrs. Brand's will; and on one of them she said she knew there was a legacy to enable her to take up the copyhold; but nothing should induce her to accept that legacy. On one occasion Mr. Serjeant showed her a pedigree, to convince her she was not, but that the defendant was the heir-atlaw; she said the pedigree was wrong, but did not point out where; and upon Mr. Serjeant telling her that the copyhold might be seized by the lady of the manor; that the defendant would not suffer the estate to go to ruin, for want of a landlord; and that if she persisted in refusing to take it up, she must not blame him for any proceedings he might institute; she replied, he might do

as he pleased, but she was determined not to have any benefit under Mrs. Brand's will. Ón Mr. Serjeant's last visit, he proposed to her, on the part of Sir George Henry Smyth, that if she did not choose to take the estate, and would permit him to do it, he would account to her for all the profits, and give her security. She answered, she would take nothing under the will; that she had already been kept out of all that estate, and all that Mrs. Brand had given to Mrs. Vincent, since the death of Sir Harvey Smyth; that she should claim the whole of the property under that title, and should have nothing to do with Mrs. Brand; and that she considered it an insult. Part of the estate in question is freehold, and part copyhold; and the larger and most valuable part is copyhold.

On the 9th of March 1814, at a general court baron, holden for the manor of Elmswell, a presentment was made of the death of the testatrix, and a proclamation for any person, claiming the copyhold part of the said estate, to come in. A second similar proclamation was made on the 8th November 1814; and a third on the 6th March 1815. No person having appeared on any of those occasions, on the 12th December 1815, the copyhold lands were seized by the bailiff of the manor, and an ejectment was brought against the tenants in possession by the lady of the manor. There was no defence to the ejectment, and the lady of the manor took possession of the copyhold lands, and retained it from that time to the trial, and received the rents. All the tenants in possession were served with declarations in ejectment.

In Trinity term 1823, the defendant caused declarations in ejectment to be served on the tenants of the estate, containing two demises by him, the first on the 2d March 1814; the second on 17th March 1817; judgment passed by default, and the defendant obtained possession by a writ of habere facias possessionem, on the 12th of January 1824. The jury found a refusal on the part of the lessor of the plaintiff to take under the will, and an assertion of title by her from the death of Sir Harvey Smyth, but that she had taken no steps to obtain possession under that title. The question for the opinion of the Court was, whether

the refusals amounted to a waiver of the devise if the Court shall be of that opinion, the verdict was to be set aside, and a verdict entered for the defendant: otherwise the verdict was to stand.

Either the lessor of the plaintiff or the defendant to be at liberty to have the case turned into a special verdict.

Mr. Storks, for the lessor of the plaintiff, said he should rely upon two propositions.

First, he should contend that the acts in question on the part of the devisee, did not amount to a waiver of the devise: and secondly, that, if they did, in point of law, the waiver was insufficient. To the first; it appears that the devisee considered she might claim as heiress-at-law under a superior title. No doubt she acted obstinately and absurdly; but she has since been convinced of her error; and has expressed her willingness to take under the will. No case has gone so far as to lay down that a party who mistakes his legal rights, and acts under that mistake, is not at liberty afterwards to avail himself of better information. In this case, the devisee did not unqualifiedly abandon-She said, "I will not take under this will; because I conceive that I have a better title at law than this will can give me."

To the second point. But supposing that her refusal must be taken to have been un

qualified, still it does not conclude her in point of law. The other side may probably rely upon some expressions which fell from the Court in the case of Townson v. Tickell and another. (1) In that case an estate in fee was devised in trust; and the devisee waived it in form by deed. The question discussed in that case was, whether this could be done except by matter of record; and the Court there decided that matter of record was not necessary; and that the disclaimer might be by deed: and there are a few expressions which fell from one of the learned Judges, that might be relied on to carry the case a little further. (Mr. Justice Holroyd, in that case had said, that he did not think a disclaimer by deed was necessary.) The case of Thom-.

(1) 3 Barn. & Ald, 31.

son v. Leach (2) may also be relied upon. But the Statute of Frauds expressly declares, that no freehold interest shall pass, except by note in writing, The devisee had a freehold interest by the very terms of the devise; so that, independent of the rules of common law, her interest was, by that statute, forbidden to pass, except by note in writing. The authorities were indeed to that effect, before the Statute of Frauds : Co. Litt. 111 a. shows that a person may enter by force of the devise; and that lands "ought not to be transferred from one to another, but by solemn livery of seisin, matter of record, or sufficient writing."(3) Butler & Baker's case is to the same effect.

Mr. Dover contrà.-The defendant is now in possession; and the lessor of the plaintiff must recover, if at all, upon the strength of her own title. The fact of her waiver is found by the jury; and it is therefore unnecessary to examine the question now attempted to be raised as to a qualified refusal, or a refusal under some mistaken notion of right. Upon the law of the case there can be no doubt. The case of Townson v. Tickell decided, that a devise is merely an offer to the devisee. The law presumes acceptance of that offer until the contrary be shown, because, primá facie, a devise is for the benefit of the devisee. No particular mode of disclaimer is necessary. By deed, is one of the modes, perhaps the best; but it is not the only one : all that is necessary, is to ascertain clearly, and to the satisfaction of a jury, that the devisee did disclaim-and that has been done in the present case. The case of Thomson v. Leach (4) is decisive of the present. It was there held, that no estate passed by surrender until the admittance of the surrenderee. Ventris thought, that assent to the surrender might be implied, because the law would presume it to be for the advantage of the surrenderee; but in p. 206, he says that a man cannot have an estate put upon him against his will; so that even Ventris, who did not entirely agree with the other Judges, considered the surrender as a mere offer, presumed to be

2 Ventris, 198. (3) 3 Co. Rep. 25. 2 Vent. 198.

accepted until the contrary should appear; but he says not a word about the necessity of a disclaimer by deed. In Sir W. Smith v. Wheeler, (5) Lord Hale says, "Crooke," one of the trustees, "is a good lessor; for the other trustee's "disagreement makes the estate wholly his." The argument on the provisions of the Statute of Frauds does not come in aid of the lessor of the plaintiff, for it, of necessity, assumes the whole matter in dispute. Undoubtedly, if the freehold had ever vested in her, it could not be divested except in writing but the defendant contends that it never did vest; that it was only offered by the devisee; that the law, in her favour, would presume her assent, until she repelled the presumption by her own act; and this the jury have declared that she did. In Brooke's Abridgment, tit. Waiver of Chose, pl. 35, it is said that where there is a devisee for life, with a remainder-man in fee, if the devise for life be waived, the remainder-man may enter. Not a word is said about the waiver being by any particular mode. Cranmer's case, in Dyer, 310 a. and Shepherd's Touchstone, 452. also would imply that the disclaimer need not be by deed; but, for the lessor of the plaintiff to succeed, it is necessary for her to show cases in which that particular mode of disclaimer is necessary.

Mr. Storks having been heard in reply, the Court took time to consider; and on this day

Mr. Justice Bayley (for the Lord Chief Justice) delivered the judgment of the Court.

After stating the case, the learned Judge observed, they were of opinion that the lessor of the plaintiff was entitled to recover. A devise vests the freehold in the devisee before entry Co. Litt. 111 a. To divest this, there must be a disclaimer; but it was unnecessary, in the present case, to decide by what formal act the disclaimer should be manifested; or whether it must or must not be by deed. It was sufficient for them to decide, that the disclaimer (by whatever mode) must be of the land in question. In this respect, the present case differed from all others which had been cited or reported. Here, the lessor of the plaintiff did not dis

(5) 1 Id. 128.

claim the land; on the contrary, she claimed it by a higher title. She said she would have the land; but she would have it as heiress-at-law of some one, and not as devisee under the will of the last taker. She had refused, for some time, to take under the will;—but she had never disclaimed the land; the only question being, in what character she should take it. She had therefore never disclaimed the land; and the postea must therefore be delivered to her lessee.

Mr. Adolphus showed cause against a rule obtained by Mr. F. Pollock, for an attachment, for nonperformance of an award. The cause he showed was, that the submission provided for obedience to an award under the hand and seal of the arbitrator; while the award in this case was under the arbitrator's hand only.

Mr. F. Pollock (contrà) contended, that this part of the submission was not an essential part; that the submission provided for an award as the material substantial matter; and that the remainder was mere description and surplusage.

The Court, however, thought it too questionable, at all events, to warrant their granting an attachment; and therefore

Rule discharged.

Mr. Adolphus afterwards moved to set aside the award in this case-but

The Court refused to grant such motion, on the ground that, if the defendant had

Mr. Archbold had obtained a rule to show cause why the rule of allowance of bail should not be set aside. This he did, upon affidavits, that the bail had justified two days before, and had given accounts of himself and his property; especially with reference to persons' names; which account was now fully contradicted.

Mr. Chitty showed cause, upon affidavit, going fully into the circumstances, partly contradicting the affidavits made to obtain the rule. He also objected to the precedent of entertaining such motions, which would lead to endless discussion, one day, as to the sufficiency of bail who had justified the day before.

The Court discharged the rule; and expressed their disinclination to entertain such motions, unless made upon some clear and palpable ground:-such, for instance, as that of a man having said he had never been a bankrupt, or never discharged under an insolvent act, when in fact he had; or some fact, the proof or contradiction of which lay in a small compass.

Rule discharged.

Private Act of Parliament-Construction -Birmingham Canal.

An enacting clause in a statute, which interferes with existing rights, must be construed strictly; but the largest and most liberal construction will be given to an exception which protects those rights.

Thus, where a statute empowered a canal company to take the water raised from mines of coal, &c., such power and authority not to extend, except where the coal, &c. produced by the mines, should be conveyed along some part of the canal,-it was held, that these words applied substantially to the whole produce; and that the company had not the power in respect of a mine, about a third of the produce of which was conveyed along a part of the canal.

This was an action of trespass for breaking and entering the plaintiff's close, on divers days between the 1st day of January 1820, and the commencement of the action in Trinity term 1825, and diverting thence the water, the property of the plaintiff.

The general issue was pleaded; and at the trial before Mr. Justice Burrough, at the Stafford Lent assizes, 1825, a verdict was entered, by consent, for the plaintiff, subject to the opinion of the Court, upon a case, of which the following is the substance.

CASE.

By the 8 Geo. 3. c. 38, a company was incorporated under the name of "The Company of Proprietors of the Birmingham Canal Navigation," and empowered to make and maintain a canal from Birmingham to Bilston, and from thence to Autherly, to join the canal from the Severn to the Trent, and two collateral cuts to certain coal mines, and to supply the said canal and collateral cuts while making, and when made, with water from all springs, brooks, streams, and watercourses, as should be found in making the said canal or collateral cuts; and from such brooks, streams, and watercourses, as were or should be found within the distance of 1000 yards from any part of the said canal or collateral cuts.

VOL. V. K.B.

This act gives no power to take water from mines, or to take water raised by fire engines out of mines.

Under the powers of this act, the canal and collateral cuts referred to were completed. One of those collateral cuts from or near Oldbury, to or near Wednesbury Holloway, passes through some premises, the mines under which belong to the plaintiff.

By 23 Geo. 3. c. 92, another company was incorporated under the name of "The Company of Proprietors of the Birmingham and Fazeley Canal Navigation," which was empowered to make, complete, and maintain a canal, commonly called the Lower Level, as an extension of the said collateral cuts, so made under the 8 Geo. 3.; and also six other collateral cuts, the course whereof is in the said act particularly set forth and also a canal from or near to the town of Birmingham, to join the Coventry canal at Fazeley, near Tamworth, in the county of Stafford, with a collateral cut to the lower part of Birmingham; and to supply the said canals and collateral cuts, whilst making, and when made, with water from all such brooks, springs, streams, watercourses, mines, hollows, caverns, and other repositories of water, as should be found in making the said canals and collateral cuts, or within the distance of 1000 yards (except as thereinafter mentioned,) from any part of the said canals or collateral cuts, or from any reservoir or reservoirs, to be made as thereinafter mentioned, for supplying the said canals or collateral cuts with water. The act then gives the company power to make reservoirs, feeders, &c., and to construct works; and for those several purposes to enter lands, they the said company of proprietors doing as little damage as might be, in the execution of the several powers to them thereby granted; and making satisfaction in manner thereinafter mentioned, for all damage to be sustained by the owners or occupiers of such mills, forges, lands, tenements or hereditaments, waters, watercourses, brooks, or rivers respectively, as shall be taken, used, removed, diverted, or prejudiced, in or by the execution of all or any of the powers of that act.

By sections 12 and 18 of this act, it is enacted as follows

Sec. 12. "And whereas the making of

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