Brown v Esmonde and Others

• Jurisdiction: Ireland
• Judgment Date: 20 February 1870
• Date: 20 February 1870
• Court: Court of Probate (Ireland)

Probate.

BROWN

and

ESMONDE AND OTHERS.

Rex v. Nowlan 1 Huds. & Br. 164.

The King v. EdmundsENR 4 B. & Ald. 483.

The Queen v. O'Connell 11 Cl. & F. 155.

Queen v. ReaUNK 16 Ir. C. L. R. 429.

The Mayor of Caermarthen v. EvansENR 10 M. & W. 274.

Rex v. JohnsonENR 2 Str. 1000.

Walters v. Hughes 1 Cr. & Dix. Cir. Cas 333(note).

Gillepie v. Cumming 1 Cr. & Dix, 294.

Aldborough v. BlandUNK 7 Ir. C. L. R. 571.

Rex v. JoyesENR 3 Ad. & El. 416.

Reg. v. O'Connell 11 Cl. & F. 155.

Reg. v. ReaUNK 16 Ir. C. L. 429.

Rex v. City of WorcesterENR Skin. 91.

Reg v. HughesENR 1 C. & K. 235.

Pryme v. Titchmarsh 2 Dow. N. S. 474.

Rex v. WoolerENR 1 B. & Ald. 193.

Fairman v. Ives 1 Chitty, 85, n.

Attorney-General v. GoodmandENR 8 Price, 320.

Rex v. HuntENR 3 B. & Ald. 444.

Rex v. Chancellor of CambridgeENR 3 Ld. Raym. 1344.

Enohin v. WylieENR 10 H. L. C. 1.

Penn v. BibbyELR L. R. 2 Ch. 129.

Dutch v. PowerUNKIR I. R. 1 C. L. 192.

Seinfen v. SwinfenENR 27 Beav. 152; 5 Jur. N. S. 1276.

Boyse v. RossboroughENR 6 H. L. C. 56.

Scott v. ScottENR 3 Sw. & Tr. 319.

Rex v. JohnsonENR 2 Str. 1001.

Rex v. BurridgeENR 1 Str. 593; 2 Raym. 1363.

Kynaston v. Mayor of ShrewsburyENR Andrews, 85.

Aldborough v. BlandUNK 7 Ir. C. L. R. 570.

The Queen v. O'Connell Arm. & Trev. 118.

The Queen v. ReaUNK 16 Ir. C. L. R. 424.

O'Connell's Case Arm. & Trev. 41.

King v. Nowlan 1 Huds. & Br. 164.

The King v. City of WorcesterENR Skinner, 91.

The King v. EdmundsENR 4 B. & Ald. 471.

Carmarthen v. EvansENR 10 M. & W. 274.

Rex v. HughesENR 1 C. & K. 235.

Goldicut v. BeaginUNK 11 Jur. 544.

Mulcahy v. The QueenELR L. R. 3 H. L. 306.

The King v. HuntENR 4 B. & Ald. 430.

Challenge — Special ury struck under Old System.

630 THE IRISH REPORTS. BROWN v. ESMONDE AND OTHERS. Challenge-Special Jury struck under Old System. A challenge to the array of a special jury struck under the old system lies in cases of trials before the Court of Probate. Rejection by the Judge of a challenge to the array, Held, not a mis-trial. A challenge to the array should tender a certain issue. Tins was a motion to show cause against a conditional order for a new trial, obtained by the Defendants, on the 2nd of November, 1869. The suit was instituted to establish the will of the late Lady Esmonde, of Johnstown Castle, in the county of Wexford. The facts of the case are sufficiently stated in the judgment of the Court. The case was tried before Judge Keatinge and a special jury, in June, 1868, when the jury disagreed. By an order of the Court, dated the 7th of June, 1869, it was, among other things, ordered that the cause be tried at the then ensuing assizes for the county of Carlow, the jury to be struck according to the system for the striking of special juries in force before the passing of the Common Law Procedure Act (Ireland), 1853, and that each party be at liberty to pray a tales. The issues were 1. Whether the paper writing, bearing date the 5th ofAugust, 1867, was executed according to the provisions of the Act 1 Viet. c. 26 ? 2. Whether Dame Sophia Maria Esmonde was, at the time of executing the said paper writing, of sound mind, memory, and understanding ? 3. Whether Dame Sophia Maria Esmonde was, at the time of executing the said paper writing, knew and approved the contents thereof ? 4. Whether the said paper writing was procured from the said Dame Sophia Maria Esmonde by undue influence, exercised upon VOL. IV.] EQUITY SERIES. 631 her by the Plaintiffs, at a time when, from weakness and debility Probate. of mind, she was unable to resist the same ? 1870. 5. Whether the said paper writing was procured from the said BROWN Dame Sophia Maria Esmonde by the fraud of the Plaintiffs ? ESHONDE. No writ of summons was issued from a Court of Common Law. The case was tried before Mr. Justice Lawson and a special jury of the county, at an adjourned Assizes, held at Carlow, on the 6th of August, 1869. On the case being called on, Defendants' counsel applied for a postponement of the trial, on the ground of the jury not having been struck according to law. That application was grounded on an affidavit made by Mr. Crozier, the Defendants' solicitor, deÂÂÂtailing certain statements alleged to have been made by the sub-sheriff of the county, and reported in the public papers, relative to the manner in which the special jurors' book had been framed. The application was opposed by the Plaintiffs' counsel, and reÂÂÂfused. The jury panel having been called over, the Defendants' counsel handed in a challenge to the array, in which they alÂÂÂleged, 1st, That the special jurors' list was not the list for the curÂÂÂrent year. 2nd, That the sheriff wilfully omitted from the list a large number of jurors-to wit, seventy, legally qualified, and placed on it a large number not duly qualified. The challenge was objected to by the Plaintiffs' counsel, on the ground that no challenge to the array was receivable on such a trial. The trial then proceeded, and the charges of fraud and undue influence having been withdrawn, the only question left to the jury was that of the capacity of Lady Esmonde to understand the provisions of the will on the day she executed it. The jury found a verdict establishing the will in all its parts. On the 13th of November, 1869, the learned Judge sent in his report of the trial to the Judge of the Court of Probate, in which, after stating the facts above mentioned, he stated that the jury appeared to have been most attentive and intelligent, and that he was satisfied with the verdict. A Mr. O'Meagher made an affidaÂÂÂvit on behalf of the Defendants, for the purpose of the motion, in which he stated that, after the jury had been struck, he went to Carlow to make inquiries as to the construction of the jurors' book, 632 THE IRISH REPORTS. [I. R. and the constitution of the special jury panel; that he ascertained that, of the fifty-two names returned by the Sheriff; only twenty-six were those of persons possessing the statutable qualifications of special jurors, and that the others were taken from the ordinary special jurors' list ; that such omission must have been caused by some gross default by the persons on whom the duty was cast of preparing such list ; that he examined the jurors' book of the county, and found in it eight names of persons duly qualified who had not been returned ; that he carefully examined the twenty-six names of those not duly qualified ; and that, from his knowledge of the county, he could say that they had not been taken from the jurors' book in the manner required by the Statute. Mr. Nunn, the Plaintiffs' solicitor, made an affidavit to the effect that he attended in the Court of Probate on the 1st of July, 1869, before the ReÂÂÂgistrar, for the purpose of striking the special jury in the cause. That no objection was then made to the special jurors' book proÂÂÂduced by the sheriff's officer ; that Sir John Esmonde was present, and also Mr. Crozier ; and that, thereupon, forty-eight names were selected in the usual manner from the said book ; that on the 12th of July, the jury was struck in the usual manner by the solicitors for the respective parties, and no objection was made to the smallness of the number of jurors, to the constitution of the jury, or to the jurors' book; and, by arrangement, assented to by the Defendants' counsel, the trial was fixed for the 6th of August ; and that no object ion was made, directly or indirectly, to the said jury, or the said jurors' book, nntil the ease was called on. A further affidavit was made for the Plaintiffs by Mr. Jameson, the sub-sheriff of the county, which stated that the jurors' book was made up previous to the Spring Assizes, 1869, and that he had no duty to interfere with the barony constables, or the decision of the magistrates in relation thereto, and did not do so. That four of the eight names, mentioned in Mr. O'Meagher's affidavit as being omitted, were over seventy years of age, and for some years had not been returned on any of the special jurors' lists for the county ; that two were those of non-residents ; that one was that of a trader not duly qualified ; and that the remaining one was returned by him on the special jurors' list. That the nineteen names which ought to have appeared on the special jury panel did not appear in the book delivered to him ; Probate. and that he had no power to insert the same. 1870. On the 2nd of November, 1869, the Defendants obtained a eon- BROWN ditional order for a new trial, on the grounds stated in the ,jud- . g ESPIONDE. ment of the Court. Serjeant Dowse, Q. C. (with him Mr. Macdonogh, Q. C., Mr. Tandy, Q. C., and Mr. F. L. Dames), showed cause against the conditional order. Two questions were before the Court-first, ought the challenge to have been received ? second, was its non-reception a ground for a new trial ? All the statements in Mr. 011eagher's affidavit were only on hearsay. The challenge omitted to state that the jury were in the box. [THE JUDGE. The challenge ought to have been made to the jury in the box, and not to the twenty-four : Tidd's Forms, 8th Ed., 348. There is no averment that there was a special list, and no challenge was ever made to the poll as unduly qualified.] No challenge lies to a special jury struck under the old system. [THE JUDGE. There is a strong dictum of Pennefather, B., against you, in Rex v. Nowlau (1)]. The 6 Geo. 4, e. 50, is the English Act analogous to the 3 & 4 Wm. 4, c. 50, the Irish Act, and since the passing of that Act no instance can be found of such a challenge being taken in England. The King v. Edmunds (3) lays down that disallowing a challenge is only ground for a venire de 910VO, not of a new trial, which is grounded on discretion ; a challenge does "not lie for the unindifferency of officers. The dictum of Pennefather, B., in Rex v. Nowlan, that a challenge lies for the...