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title, but the bare admittance and the payment of the fine to the lord (a). But when the application for a mandamus is where there is no dispute between the heir at law and a stranger, then the case stands on a different footing. Here there is no dispute between the heir at law and any other persons; and the title of the co-parceners is out of the question. I have no doubt in the present state of things, that for the purpose of taking the inheritance the co-parceners form but one heir, and that they are entitled to be admitted as one heir, but I am not so clear whether more than one fine, or more than one set of fees, can or cannot be taken upon their surrender or their admittance. The present inclination of my opinion is, that they may make a joint surrender upon the payment of one fine and one set of fees. It is laid down, that co-parceners may join in a demise, and if they may do that, I do not see why they may not join in a surrender, and be liable only to one set of fees. Upon that point, however, I wish to give no opinion with the same confidence that I do upon the other. The proper course will be to direct a mandamus to issue commanding the lord and his steward to admit the persons applying, and to accept their surrender, paying the lawful fees. If the lord or his steward shall hereafter wish to have the further opinion of the Court upon the point whether more than one set of fees may be lawfully demanded, it will be competent for them to do so, by making a return to the mandamus.

BAYLEY, J.-I have no doubt as to the propriety of granting a mandamus, for this is not merely the application of the heir, but of the person to whom the heir is desirous of conveying the estate; and therefore he has a right to

(a) See Rex v. The Brewers' Company, ante, 307.

1824.

The KING

v.

The Lord of

the Manor of BONSALL.

1824.

The KING

v.

The Lord of

BONSALL.

clothe himself with the legal title, in order that he may stand in the relation of tenant and convey it to others. Upon the subject of the fees to be paid, I own, that as at the Manor of present advised, I think the co-parceuers are entitled to be admitted upon the payment of one fine to the lord, and one set of fees to the steward upon admittance; because the law considers them as constituting one entire heir. The inheritance descends entirely to all the coparceners, and remains entire in them until they make a severance. If they afterwards make a severance, then they will convey in distinct parts; but if, instead of severing and conveying in parts, they all join in conveying to the same party, it seems to me there ought to be but one fine payable to the lord, and one set of fees payable to the steward; and then that mischief which, with reference to copyhold estates, is considered as existing, will be prevented for it has been considered till lately, as a doubtful point, whether, when there has been once a severance and disunion of the estate, that would take away from the lord the right to different heriots, and from the steward the right to distinct fees. But in the case of an inheritance descending entire, and continuing entire until some act is done to sever it, I think the act of all the co-parceners in conveying the estate has not the effect of severing it; but that it passes from them as an entire estate, and consequently but one set of fees is payable.

HOLROYD, J.-At present the co-parceners have the unity of the estate in them, and they may pass it from them either by a joint conveyance or a joint demise; and that being the case, the law considers them as one heir. In the case of freehold, co-parceners may be tenants to one præcipe, because they have the unity of the estate in them. The same principle applies in the case

of copyhold. At present the unity of estate being in these co-parceners, I think there should be but one fine, and for the same reason it seems to me that the steward would be entitled to one set of fees only upon the admission of the different persons constituting one tenant.

LITTLEDALE, J.-I am of opinion that an heir is entitled to a mandamus to admit in the case mentioned by my Lord Chief Justice. Here it is of importance to the purchaser of the estate, to know that he has a good title from the heir, and for that purpose it is necessary that the heir should be admitted. I also think that these co-parceners are in law but one heir, and are entitled to be admitted as one heir. Whilst the estate is united in them, co-parceners may join in one surrender. They may join in one avowry, and so in a surrender; and if so, why may they not be admitted upon the payment of one fine to the lord, and one set of fees to the steward? I really see no reason why they may not.

Rule absolute.

1824.

The KING

v.

The Lord of the Manor of BONSALL.

SIR WILLIAM CURTIS, Bart. and another, v. The Inhabitants of the Hundred of GODLEY.

DEBT, on the statute 9 G. 1. c. 22., against the defend- An action will ants, inhabitants of the Hundred of Godley, in the county the hundred not lie against of Surrey, to recover damages for an injury sustained by upon the 9 G. the plaintiffs, in having had a quantity of fir trees, growing the unlawful for profit, wilfully, maliciously, and feloniously destroyed and malicious

1. c. 22. for

destruction of

a plantation of trees by fire, unless the act done proceeds from a malicious motive towards the owner of the property. Therefore, where a fire, supposed to have been wilfully made, had commenced in another person's plantation at the distance of a mile from the plaintiff's wood, aud by communication the flames destroyed his property:-Held, that the case did not come within the Black Act, so as to entitle him to sue the hundred.

1824.

CURTIS

ช. GODLEY.

by fire by some person or persons unknown. Plea, the general issue, and issue thereon. At the trial before Alexander, C. B. at the last Lent Assizes for the county of Surrey, the evidence in support of the action was this:

On the 6th May, 1823, a large plantation of firs, growing on Bagshot Heath, belonging to the plaintiffs, and which was situate at a distance of a mile from any dwelling house, was destroyed by fire. The fire first broke out in the day-time, in an adjoining plantation, belonging to a Mr. Laurel, and burned through that plantation for the length of a mile, previous to its communicating to the plantation of the plaintiffs. The spot where the fire was first seen was distant half a mile from any dwelling house, and from any public road, and near it were found some remains of sear wood, which appeared to have been collected and used for the purpose of kindling a fire. Upon this evidence, it was contended that there was no case to go to the jury, from which they could presume that the fire was wilfully and maliciously kindled. The probability was, that the fire was either accidental, or occasioned by some mischievous boys, in which case the hundred would not be answerable. Two objections, after mentioned, were also taken as to the liability of the hundred in point of law for the injury in question, supposing it to have been wilful and malicious. The Lord Chief Baron reserved those points, with liberty to the defendant to move to enter a nonsuit, in the event of a verdict being found for the plaintiffs; and his lordship then directed the jury to find for the plaintiffs, if they were satisfied that the fire had been kindled wilfully and maliciously, but, if they thought it arose from accident, to find for the defendants. The jury found for the defendants.

Marryat, in Easter Term last, obtained a rule for a

new trial, on the ground that the verdict was contrary to the evidence.

Bolland shewed cause, The jury were, upon the evidence, justified in finding that this was an accidental and not a wilful and malicious fire. There was no proof to satisfy the averment in the declaration, that the plantation was wilfully, maliciously, and feloniously destroyed. The hundred is not liable for accidents arising from the wantonness of boys, or the carelessness of wayfaring persons, who may happen to kindle a fire for culinary purposes, in an open place like Bagshot Heath. Some satisfactory evidence was necessary to shew that the fire was occasioned by the commission of a felonious act. Positive evidence to that intent may not be necessary, but some cogent proof of an unlawful intention must be adduced, so as to subject the hundred to liability. Here the evidence was too slight, and the jury did right in finding for the defendants. But there are two fatal objections to the plaintiffs' right to recover against the hundred in point of law. First, that the wilful destruction of a plantation of trees of this description by fire is no offence within the Black Act, 9 G. 1. c. 22. upon which the action is founded; and second, that if it be an offence to destroy trees of this description, the remedy given by law is against the parish, town, or vill, and not against the hundred. As to the first objection, it is fatal in two points of view. The words of the Black Act are that "if any person or persons shall unlawfully and maliciously kill, maim, or wound any cattle, or cut down, or otherwise destroy, any trees planted in any avenue, or growing

in

any garden, orchard, or plantation, for ornament, shelter, or profit, &c." Now to destroy trees by fire is no offence within this act, because the words "or otherwise destroy," must mean a destruction ejusdem generis with

1824.

CURTIS

v.

GODLEY.

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