Attorney General v Lancelot Allgood Esquire

REPORTS of CASES Concerning the REVENUE, ARGUED and DETERMINED in the COURT of EXCHEQUER, from Easter Term 1743, to Hilary Term 17(57. By SIR THOMAS PARKER, Late LORD CHIEF BARON of that Court. MDCCXCI. [1] easter term, 16 geo. 2, I74;i. attorney-general against lancelot allgood enquire.-A defendant cannot plead several matters to an information of intrusion, by tde act 4 Ann. c. 1G, for the amendment of the law. An information of intrusion was exhibited in this court against the defendant, for intruding into a piece or parcel of pasture land, late parcel of the moor or common, called Hymondburn Common, called by the name of Hehill-Kigg, lying on tlie north side of Fenwick-Field grounds, and laid to and held with Fenwick-Field farm, containing by estimation three acres, or thereabouts, and into several other lands ; and also into all those collieries and coal mines, situate, lying and being within and under all those commons or moors, called VVark-Fell and Symondburn-Fell or Common, near Coleburn ; all which said premises arc situate, lying and being in the parish of Symondburn, in the manor of Wark, and county of Northumberland. Mr. Fawkes, on behalf of the defendant, moved for leave to plead three several matters : First, the general issue. -Secondly, that the [2] premisses are part of the defendants manor of Symondburn, and traverse that they are parcel of the manor of Wark in the information.-Thirdly, the statute of Limitations, before the King's title accrued to the manor of Wark. An order being made to shew cause, the question was spoke to at large by Mr. Fenwick, Mr. Wilbraham, Mr. Craister, and Mr. Bootle, for the defendant, and by Mr. Attorney and Mr. Solicitor-General for1 His Majesty ; and after time taken to consider of what had been insisted upon by the counsel on both sides, [ delivered the opinion of the court. The question is, whether several matters can be pleaded to an 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 had in informations of intrusion at common law, and how it was abridged by 21 Jac. 1, c. 14. [t appears by Dyer, 2,'JiS b and 4 Inst. ll(i, that by the antient course of this court, if a defendant pleaded not guilty to an information of intrusion, he should lose his possession. The statute, 21 Jac. 1, c. 14, recites, that where the King, out of his prerogative, may enforce the subjects in informations of intrusion to plead title, the King, out of his gracious disposition, being willing, to remit a part of his antient and regal power. [3] It is enacted, that the defendant may plead the general issue, where the Crown hath been out of possession twenty years before the information brought; and in such cases the defendant shall retain the possession until the title be found for the King. lillli PARKER . THE ATTORNEY GENERAL I'. ALLGOOD 697 The law standing thus, [ now proceed to consider the clauses 4 Ann. c. If!, upon which the present application is founded. By sect. 4. 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 same court, to plead as many several matters as he shall think necessary for his defence. Sect 5. Provided, that if any such matter shall be judged insufficient, coats shall be given at the discretion of the court; and if a verdict shall be found upon any issue in the cause for the plaintiff or demandant, costs shall be given in like manner, unless the judge who tried the issue shall certify, that the defendant or tenant, or plaintiff, in replevin, had probable cause to plead such matter, which upon such issue .shall be found against him. It has been insisted for the King, that the King, not being expressly named, is not bound by this act. 2 Inst. 191. The Grown is not bound where it would be ousted of a precedent prerogative without express words. [4] Ascmwjh's case in the court of Wards, Gro. Gar. 520, f 2(i. General words, where the King is not named, shall never bind or bar him. And it has been said, that for that reason, according to the cases of .-tiulliiy an.il, Halwy, I Jo. 202. I'titi-ipx and Tliotiipon, 3 Lev. (if), 191. 2 Shower 481. limx-iey a/tfl Datijxwi, 28 of June 17o4, 13. It., that neither the statutes de...