attorneygeneral against lancelot Allgood esquire a defendant can plead several  matter to a information of intrusion by the act Ann c for the amendment of the  law a information of intrusion be exhibit in this court against the defendant  for intrude into a piece or parcel of pasture land late parcel of the more or  common call Symondburn common call by the name of HehillRigg lie on the north  side of FenwickField ground and lie to and hold with FenwickField farm contain  by estimation three acre or thereabouts and into several other land and also  into all those colliery and coal i situate lie and be within and under all  those commons or more call WarkFell and SymondburnFell or common near Coleburn  all which say premise be situate lie and be in the parish of Symondburn in the  manor of Wark and county of Northumberland Mr Fawkes on behalf of the  defendant move for leave to plead three several matter first the general issue  second that the Parker premise be part of the defendant manor of Symondburn  and traverse that they be parcel of the manor of Wark in the information three  the statute of limitation before the king title accrue to the manor of Wark a  order be make to show cause the question be speak to at large by Mr Fenwick Mr  Wilbraham Mr Craister and Mr Bootle for the defendant and by Mr attorney and  Mr solicitorgeneral for his majesty and after time take to consider of what  have be insist upon by the counsel on both side I deliver the opinion of the  court the question be whether several matter can be plead to a information of  intrusion but before I consider the statute for the amendment of the law it  may be proper to state what prerogative the crown have in information of  intrusion at commonlaw and how it be abridge by James c it appear by dyer b  and Inst that by the ancient course of this court if a defendant plead not  guilty to a information of intrusion he shall lose his possession the statute  James c recite that where the king out of his prerogative may enforce the  subject in information of intrusion to plead title the king out of his  gracious disposition be Willing to remit a part of his ancient and regal power  Parker it be enact that the defendant may plead the general issue where the  crown have be out of possession twenty year before the information bring and  in such case the defendant shall retain the possession until the title be find  for the king Parker er p the law stand thus I now proceed to consider the  clause Ann c upon which the present application be find by sect it shall be  lawful for any defendant or tenant in any action or suit or for any plaintiff  in replevin in any court of record with the leave of the Sanie court to plead  as many several matter as he shall think necessary for his defence sect  provide that if any such matter shall be judge insufficient cost shall be give  at the discretion of the court and if a verdict shall be find upon any issue  in the cause for the plaintiff or demandant cost shall be give in like manner  unless the judge who try the issue shall certify that the defendant or tenant  or plaintiff in replevin have probable cause to plead such matter which upon  such issue shall be find against he it have be insist for the king that the  king not be express name be not bind by this act Inst the crown be not bind  where it will be oust of a precedent prerogative without express word Parker  Ascoughs case in the court of ware cro car general word where the king be not  name shall never bind or bar he and it have be say that for that reason accord  to the case of Audley and Halsey I Jo Philips and Thompson lev shower Brassey  and Dawson of June b r that neither the statute de mercatoribus nor of the  staple nor of bankrupt shall bind the crown the king and franklin Hilary Geo b  r the statute W c for a venire de to make new do not extend to the crown and  the reason give by Lord chief justice Raymond be because it speak of plaintiff  and demandant but though it be a general rule that the king shall not be bind  by statute which do not name he yet this rule have several exception as be  manifest from the case cite by the defendant counsel they be enumerate in the  case of ecclesiastical person Rep all act to suppress wrong or fraud or to  prevent the decay of religion bind the king and therefore in that case of Rep  it be hold that lease make to the queen by college or dean and chapter be void  because they tend to the decay of religion and so be Magdalen college case Rep  a and hob Parker so act to suppress wrong as Lord berkeleys case Plowd Q that  if a gift in tail be make to the king he can alien to defraud he in reversion  or his issue for he be bind by the statute of Westminster de gift conditional  the statute of marlbridge of distress bind the king Inst Rep 72b Inst the  statute of Westminster c quod whenever some law non to have tempore hujusmodi  custodiar presentaverit hold that this act make to suppress wrong bind the  crown Inst for the same reason the statute of Henry c of discontinuances bind  the crown the case cite in the bishop of London and the king show parliament  case stand upon a different reason as report in that book if two church be  unite by act of parliament and the first turn be give to the patron of the  great live and the king be the patron of the lesser live it be hold by the  civilian at doctor Commons before the chancellor of London and several  assistant delegate that the other patron shall present to the first turn  because a new right of presentation be give and must be take as it be give  these be all the case which have be cite by the defendant council except the  Parker case of Bewdley which I shall state and give a particular answer to by  and by and these case I be so far from dispute that I admit they to be law and  my next inquiry shall be whether they be applicable to the present question as  to Magdalen college case Rep a it will be proper to compare the word of the  statute Elizabeth and the reason of the judge upon they with the word of the  four and five section of the statute for the amendment of the law and then see  what the natural inference will be the word of the Elizabeth be to any person  or person body politic or corporate and the judge observe that without  question the queen be a person king be mask to mix and a body politic then if  the act be general and the queen be clear include in the word and if exempt  out of the act it must be by construction the law will not make such  construction to the prejudice of religion Parker er p so that the queen be  within the express letter of the Elizabeth but in the present case the act  speak of defendant and tenant plaintiff and demandant and plaintiff in  replevin and the king be not express include and if we be to include he it  must be by construction which will overturn many authority already cite and  some other which I shall have occasion to mention but it be further observable  that two of the reason upon which the case cite by the defendant Parker S  counsel be find videlicet the advancement of religion and the suppression of  fraud total fail in the present case and the remain consideration be whether  the restrain of a defendant from plead several matter in his defence be a  wrong of such a nature as these case allude to and it seem to I pretty  extraordinary to charge a rule of the commonlaw which prevail for century as  appear by   light a with such a imputation and it will afford no argument that  this be a wrong within the meaning of these case to say that the public wisdom  of the nation have make ail alteration and allow of plead several matter  because that argument will equal have hold to have amend or cure slip and  defect in plead in the case of the crown and yet neither the statute of  amendment nor of Jeofails extend to the case of the crown because they speak  of challenge of the party or between party and party and so it be hold as to  the statute of amendment in the queen and Tutchen salk and Mod then as to the  statute of Jeofails throw c in the case of the king and Sherrington Talbot cro  car it be hold that that statute do not extend to a quo warranto nor to  information of intrusion for the king be not bind unless he be name but Mr  attorneygeneral Noy say peradventure it will be otherwise in the case of a  quare hinder where the suit be between the party and the king Mr Noy be a very  learned man and suppose he right in what he say it will not Parker govern the  present case because there be a difference between a quare hinder where the  king sue in that name by original writ and where he sue in the name of his  attorney general by information as to the case cite out of shower parliament  case though the only reason give in the book be that it be a mere right of  presentation and must be take as the act give it yet it seem to I that that  case stand upon the same principle of reason as the other case videlicet that  the act will have do a wrong if the course of presentation have be invert and  the crown have be prefer in the presentation   b but beside let we consider  what be the determination of the principal case of the bishop of London and  the king both by the court of king bench and the house of lord that though by  the act the right of presentation be vest in the bishop of London and the Lord  Jermyn alternate yet that the king by promote the incumbent to a bishopric  have a right to supply that turn by his prerogative and that that right be not  affect by the act but it have be insist by the defendant counsel that this  matter have be in effect determine in the case of the queen and the bailiff  and burgess of Bewdle I William that be a to know facias out of the petty bag  to repeal a charter grant to the borough Ann the venire be award de vicineto  and the question be whether it be well award Parker or shall not have be de  corpore comitatus which depend on the six section of the act for the amendment  of the law the word be these and whereas delay do frequent happen in trial by  reason of challenge to the array of panel of juror and to the poll for default  of hundredors be it enact that every venire facias for the trial of any issue  light any action or suit in any of her majesty court of record at Westminster  shall be award of the body of the proper county where such issue be triable  Lord chief justice Parker deliver the opinion of all the judge that though  this clause may have extend to the cause of the crown if the objection have be  recent make yet the practice of the crown office and this court have be from  the make of the act to award venires de vicineto it will be in some measure to  overturn the justice of the nation if the practice shall be disallow and  therefore they hold the venire well award de vicineto but the counsel for the  defendant in that case who contend that the venire be misawarded de vicineto  and that it ought to have be de corpore comitatus distinguish that clause from  the clause now under consideration and take notice that Parker er p the act  consist of distinct branch which be as several law some of they be jeofails  and other alternative of the commonlaw and that the word of they do not extend  to the crown and particular Parker these clause which speak of defendant or  tenant plaintiff or demandant or plaintiff in replevin I William that case  furnish I with a further instance to show that a act which do not name the  crown do not extend to it and that be upon the statute of fraud and perjury  car c S whereby execution be make to bind only from the time of the delivery  of the writ to the sheriff which act have general word every writ of execution  and yet the crown be hold not to be bind by it vie king and Mann strange and  with the case of the queen and Foley motion to plead double to a information  in the nature of a quo warranto be deny because it be not within the clause  and the constant practice of the court of king bench be agreeable to this as I  have be inform upon this occasion by Mr masterman a very know and experience  officer but it have be object that a information of intrusion be a civil suit  and a information in the nature of a quo warranto a criminal one and I do  incline to think this to be a civil suit but whether a information in the  nature of a quo warranto be a criminal or a civil suit we do not take upon we  because it be not necessary to be do to determine in the case of the king and  Bennet mayor of Shaftsbury Trinity Geo the twelve judge be equal divide upon  that question and what be very remarkable two upon each Parker bench be of  different opinionsParker bury powys blencowe dorm and fortescue that it be  criminalKing Tracy price Eyre Pratt and Montague that it be not and the  question have receive no judicial determination since that ever I hear of but  yet there seem to be a good deal of analogy between information of intrusion  and information in the nature of a quo warranto a information of intrusion be  for intrude upon the possession of the crown and the judgement in the case of  Alton wood I Rep a be that the defendant de intratione intrusion transgression  et contempt prediction to overcome ac quod def to move away a possession  praemissor ac attachietur per corpus suum wherever c ad faciend that which  divides cum owner queen pro prediction transgression et contempt unde in form  say in addition to intimacy be a information in the nature of a quo warranto  be for usurp a public office the judgement accord to the print case of the  king and Pender which be beard in the house of lord march be that the  defendant de et in duty liberate privilegi et Franchesia prediction nullo  modus see intromitta send ab the same et the dawn whithersoever you please  inside abjudice et to shut out et quod prediction def ad satisfaciend lord  king de usurpation prediction Parker to take in hand with a addition of cost  by whether c S and these two sort of information be consider as similar in cro  car a objection arise from the seven section of the act that accord to the  rule of exception let regulan in non To take out the defendant ought to be at  liberty to plead these plead because appeal of felony or murder and indictment  or presentment of treason felony or murder and action or information upon  penal statute be only except there be the same clause in James c and I believe  this be transcribe from it and the same argument make use of in cro car but it  be disallow the defendant counsel have also recourse to the that section that  this act and all the statute of Jeofails shall extend to all suit in any of  her majesty court of record at Westminster for the recovery of any debt  immediate owe or any revenue belong to her majesty her heir or successor and  it be insist that this be a information for the crown revenue but this clause  principal respect information for duty extent writ of they to shut extremum  and to know facias for the recovery of the revenue and this information be for  the recovery of the land itself and though in a large sense of the word  revenue this may be consider as a revenue Parker cause as the land be nothing  but the rend and profit it produce and the rend and profit of the crown estate  be proper the land revenue of the crown the meaning of the word that this act  and all the statute of Jeofails shall extend Parker er p to the case there  mention can be that all the clause of the act shall extend to they because  many of they have not the least relation to the proceed of the crown in court  of justice if not all then the question will be what clause I answer such  clause as be of the same nature and tendency as the that section itself and  that be to aid and assist the proceed of the crown and consequent the first  clause relate to demurrer to aid defect not special assign for cause of  demurrer and the second and three clause relate to jeofails for the same  reason it may be then ask why not the four and five clause for plead several  matter the reason be because such a construction instead of make the that  clause a aid clause will bring new difficulty upon and be to the disadvantage  of the crown both in respect of plead and proof which will be contrary to the  whole tenor and spirit of the clause as Lord chief justice Hobart in needler  and the bishop of Winchester take it for grant that one chapter of a act of  parliament may be both general and particular because one chapter may contain  diverse act and law which may be as several in their nature as if they be in  several chapter I apprehend by parity of reason that where there Parker be  different provision for different purpose and pen in different word in the  same chapter they ought to be so construe to avoid inconsistency as if they  have be in different chapter and it seem to I to be plain that if the that  section have be in a different chapter it can not have influence the  construction of the four and five section of the act this act have be in force  above thirtyseven year and no case produce where a defendant have be allow to  plead several matter against the crown as to the argument draw by Mr attorney  and solicitor general from the that of queen whether c that it be understand  that the act that whether do not extend to the crown because the statute that  of whether extend it and the statute of Jeofails to mandamuss and information  in nature of a quo warranto it be full answer by the that section of the that  of whether that that statute only extend to suit for debt due immediate or  revenue belong to the crown and so it be necessary to extend it by the that of  whether to mandamuss and information in the nature of a quo warranto and  therefore I lie no stress upon that argument so as to the argument from the  word action or suit it have be hold that action will not include a information  the king and Buckley Hilary W in Scaccario but suit undoubted will and  therefore this must likewise be lie out of the case Parker the only remain  case be Hardr where the plead of double matter be allow by the attorney  general consent but Mr attorney in the present case have sufficient show his  dissent and for these reason we be all of we of opinion that the defendant  ought not to be allow to plead these several matter to this information of  intrusion within the intent of the statute for the amendment of the law and  the rule to show cause be discharge per totan curian on the d of may in easter  term Geo since the delivery of this opinion the case of the king and Huggins  have be print in Comynss report that the defendant in a action for a escape be  allow to plead double non debet et recenter follow after be the answer be that  the case be misreport for though on the that of April there be a rule to show  cause why these plead shall not be plead yet that rule be discharge on the  that of may follow and it appear by the record that the defendant do not plead  non debet but only a reception by fresh pursuit the case of the  attorneygeneral and snow have also be since print in Bunbury where the  defendant have leave to plead double to a information of debt non be factum  and condition perform but the reporter make a quaere whether the act of the  that of whether for the amendment of the law extend to the case of the crown  Parker notwithstanding this case see no reason to depart from the opinion of  the court in the king and Allgood especial as it be confirm in the case of the  king and sir Clifford William Phillips in Hilary Geo and the practice have be  accord ever since Parker er p