And in other matters. law, unless excluded by a stronger title in some other; that the office (claimed contemporaneously by the defendants) implied an authority or delegation conferred by some other, and could scarcely, if at all, be made consistent with the claim of ownership, which to a large extent, at least, would exclude the notion of any such delegation or authority from another; that he was bound to presume that the office must have been, and must be held to have been, derived from the Crown, and held under the Crown by its own grant or commission, or by act of parliament necessarily made with the concurrence of the Crown; and that the power, estate or authority, by or out of which the office was granted or derived, must be presumed to have reserved or kept to itself all that was not granted with the office. His lordship also said he thought that the office, being derived from the Crown, must be held to be of a fiduciary nature, and that the corporation must be held to have had imposed upon it, not only the duty of faithfully executing the office, but of so exercising it as to protect and not encroach upon the right of the Crown (n). The Crown is also, in several matters, unaffected by any Statute of Limitation, and may still avail itself of the prerogative rule or maxim, nullum tempus occurrit regi. Thus, in those matters not embraced by those statutes relating to claims by the Crown exclusively, or by those statutes relating to claims by it, and by its subjects, but embraced by the other Statutes of Limitation (o), the Crown is unaffected by these other statutes, for in neither of them is the Crown specially named (p). And although the last cited statute is for the better ad (n) Att.-Gen. v. The Corporation of London, 12 Beav. 8. See also the remarks of Lord Cottenham, C., on appeal, 2 Mac. & G. 259, 264, 268. (0) 21 Jac. 1, c. 16; 3 & 4 Will. 4, c. 42. (P) Wightw. 148; Rex v. Morrall, 6 Pri. 24; Lambert v. Taylor, 4 B. & C. 153; 1 Dru. & W. 222. vancement of justice generally, and therefore so far may be binding on the Crown, without being specially named (q), yet so far as it is a Statute of Limitation, the Crown is unaffected by it. The Crown, however, although unaffected by these statutes, may have the advantage of them (r). So where in only some parts of a statute, as to some only of the subjects to which it is applied, the Crown is named, and in other parts of the same statute, as to other subjects to which it is applied, is not named, and the statute is one within the general rule as not binding the Crown, the Crown is not, in the latter case, affected by such other parts. For as one chapter of an act of parliament may be both general and particular, because one chapter may contain diverse acts and laws, which may be as several in their natures as if they were in several chapters (s); so, by parity of reason, where there are different provisions for different purposes, and penned in different words in the same chapter, they ought to be so construed, to avoid inconsistency, as if they had been in different chapters (t); and expressio unius exclusio alterius. Thus in the 2 & 3 Will. 4, c. 71, the Crown is named in the sections one and two, but is not named in the section three, which is applied to a different subject to those of the two former sections, and the statute being a Statute of Limitations, or of that nature, and not binding on the Crown unless named, the Crown is therefore not affected by the latter section (u). In all cases, therefore, not within the Statutes of Limitation relating to the possessions of the Crown, the extent to which the ancient maxim or prerogative, nullum tempus occurrit regi, is still in force, may be still a (q) 5 Co. 14 b; 7 Ib. 32; 11 Ib. 66; Plowd. 236, 237; Rex v. Wright, 1 Ad. & E. 434; 10 Exch. 94. (r) 11 Co. 68 b; Leon. 158; Plowd. 243. (s) Hobart, 226. (t) Parker's Rep. 13. (u) See Doe d. The Queen v. The Archbishop of York, 14 Q. B. 81. When not is derived from a subject. question. "It is difficult," said Eyre, B. (x), " to settle the bounds of this maxim. It is clear that the Crown shall in no case be bound by such imputed laches as would bar private persons, that the Statutes of Limitation shall not extend to it. Whether the maxim should go further I much doubt. With respect to presumption arising from the acts of other persons, I think it ought to have the same force against the Crown as against private persons. In the case of Alderman Chitty's will (y), it was presumed that the first sheet of the will was in the room at the time of the execution of the second sheet, which was attested by the witnesses. Suppose the Crown had been interested to contest that will. I think the same presumption ought to have prevailed against the Crown as did prevail against the heir at law. In old recoveries, a good tenant to the præcipe is presumed. If the Crown is a party, there ought to be the same presumption against the Crown as against the heir." When the Crown derives a right from or through a where the right subject, and the law of limitation affecting the subject does not extend to the Crown, and the period of limitation within which the right is to be asserted has commenced but has not expired when the right vests in the Crown, the ancient prerogative rule or maxim is available for the Crown, and, as against the Crown, that period, from the time of the vesting of the right in the Crown, ceases to run (z). When affected is so derived. Although, however, in general, the Crown is not where the right bound by, because not expressly named in, the ordinary Statutes of Limitation, yet in cases of rights derived by the Crown from or through a subject against whom a plea of those statutes would avail, the Crown may be affected by those statutes, for the Crown is only entitled (a) 3 Gwill. 1176; 2 E. & Y. 342, S. C. (y) 3 Burr. 1773. (z) Lambert v. Taylor, 4 B. & C. 138. AFFECTING THE CROWN-DUCHY OF LANCASTER. to the rights of the subject, and cannot create or revive a right if none existed, or it has become barred, and as the subject could not recover if the statute had been pleaded, so neither could the Crown standing in the same situation as the subject (a). 245 The Duchy of Lancaster is vested in the Crown by Duchy of Lancaster created, a title distinct and separate from the title to the possessions held jure coronæ. The title of the Crown to this duchy is founded upon a grant made in the year 1377 by Edward the Third to John of Gaunt, Duke of Lancaster, by which the county of Lancaster was created a county palatine, with various liberties and franchises to the duke for his life. By subsequent charters and acts of parliament, the duchy, with such rights as were originally granted with it, is now vested in her Majesty (b). and with its possessions vested in the separate from sessions. The possessions of the Duchy of Lancaster are vested in the king or queen in the regal capacity, and not as duke or duchess; for the latter title, being of an inferior sovereign, but order to the former, is, by the accession of the estate the Crown posroyal, drowned (c), and, by the common law, the name of the duchy and all the franchises, liberties and jurisdiction thereof, whilst in the hands of the king or queen having the Crown and jurisdiction royal, were extinguished. But the common law was altered, and the duchy became a duchy with the like franchises and liberties as formerly, but disjoined and separate from the Crown, and from the ministers and officers of the Crown, from the receipt of the revenues of the Crown, and from such order of conveyance as the law required in passing the possessions of the Crown. Notwithstanding such separation, however, the king or queen who has the duchy is not in any other estate or degree than before, and for things which concern his or her (a) Rex v. Morrall, 6 Pri. 24. (b) The case of the Duchy, Plowd. 212; 5 Moore, P. C. C. (c) Plowd. 214; 2 H. of L. Cas. 910; Alcock v. Cooke, 5 Bing. 340. Restoration of merly severed from it. person, is in the same estate as before, although having the possessions of the duchy in another degree, and yet not Duke or Duchess of Lancaster. In short the possessions of the duchy are merely severed from the possessions of the Crown in survey, order, government, and process, but not in person, so long as the Crown and the duchy are united in the same person (d). In the reign of Philip and Mary (e), such possessions possessions for of the duchy as were formerly severed from it, but had then reverted to the Crown, and as well those within as those without the county palatine of Lancaster, were again annexed to the duchy, as the other ancient possessions of it, and the Crown was empowered to annex to it any other honours, &c., within the realm of England, not being parcel of the ancient inheritance of the Crown, or of the principality of Wales, or of the duchy of Cornwall, or of the earldom of Chester, or being within the counties of Chester and Flint, or either of them, and not exceeding in the whole the yearly value of 2,000l., for the further augmentation, honour and estate of the said duchy. And all such honours, &c., within the said county palatine so annexed, and also all those out of the same county so annexed, were subjected to the rule, governance and jurisdiction of the said duchy as the other possessions thereof within and without, respectively, the same county. In the present reign (f), the legislature authorized the sale of any land held in right of the duchy and not convenient to be held with the other possessions thereof, and to invest the monies produced by such sale in the purchase of other land convenient to be so held, to be conveyed to the Crown and to be vested in it in right of the said duchy, and be held with the like incidents as other land belonging to it. Right to goods of intestates. The right to the goods of persons dying within the (e) 2 & 3 Ph. & M. c. 20. |