Earl of Aldborough and Another v Bland and Others

• Jurisdiction: Ireland
• Judgment Date: 06 June 1857
• Date: 06 June 1857
• Court: Court of Common Pleas (Ireland)

Common Pleas.

EARL OF ALDBOROUGH and another

and

BLAND and others.

Rex v. JohnsonENR 2 Str. 1000.

Regina v. O'NeillIR 4 Ir. Com. Law Rep. 22.

Wood v. PeytonENR 13 M. & W. 371.

Pennell v. MeyerENR 8 C. & P. 470.

Beardmore v. RattenburyENR 5 B. & Ald. 452.

AnonENR Godb. 194.

Snow v. Phillips Sid. 220.

Weary v. AldersonUNK 2 M. & R. 127.

Highfield v. PeakeENR 2 M. & M. 109.

Garvin v. Carroll 10 Ir. Law Rep. 323.

Errington v. RorkeIR 5 Ir. Com. Law Rep. 542.

COMMON LAW REPORTS. 571 T. T. 1857. CommonPleas. EARL OF ALDBOROUGH and another v. BLAND and others. June 2, 3, 4, 5, 6. The array of j a special jury panel was chalÂlenged because the jury were returned and summoned without any precept issued by the Judges of Assize, or under the hand of any Judge of any of the Superior Courts at Dublin ; and secondly, be cause the jury were not returned or summoned by the Sheriff of said county. The plaintiff, by his counterplea, alleged the making of a Judge's order for the attendance of one of the Coroners before the Master of the Queen's Bench, to enable the Master to ballot for a special jury, in accordance with the former practice existing before the passing of the 16 & 17 Vic., c. 113. The counterplea averred the ballotting for and reduction of the list of names so drawn; that, by a certain writ issued out of said Court, and under their seal, directed to said Coroners, they were commanded " to have before the Justices of the Queen's Courts, on the day named, or beÂfore one of the Justices appointed to hold the Assizes in and for K., if they should come before, &c. the said jurors, &c., and that they were summoned accordingly." The defendants replied to the counterplea that the order has been made in invitos, notwithstanding their protest. The plaintiff having demurred to this replication, the challenge was overruled, and an exception was accordingly taken.-Held, that by reason of the order to strike a special jury according to the former practice, the provisions of the Common Law Procedure Amendment Act, 1853, sec. 109, relative to the issuing of a precept, did not apply to the case of a jury so summoned. Held also, that there is nothing in the 3 & 4 W. 4, c. 91, or in the Common Law Procedure Amendment Act, to deprive the Coroner of his Common Law function of acting, in place of the Sheriff, in the summoning of juries, whether common or special, where the Sheriff is under disability. Held also, with reference to an objection that it did not appear that the writ of habeas corpora juratorum was preceded by a writ of venire facias, that even assuming the omission to be material, it was only ground of error, but not of challenge. In the course of the trial, the plaintiff read in evidence the following documents ; first, an attested copy of an affidavit sworn by one of the defendants, in a petition matter, in the Incumbered Estates Court ; and secondly, an office copy of objecÂtions, verified by a solicitor on behalf of the defendants. The evidence was objected to, upon the ground that the plaintiff had not proved the petition in said matter, so as to give the Court jurisdiction ; and also, that the objections had not been signed. Held, that these documents were admissible, as admissions, without proving the proceedings in the matter. Held also, that the agency of the solicitor, who verified the objections, not being disputed, the defendants were bound by his acts in relation thereto. Qucere.-Whether the overruling of a challenge to the array can be made the subject-matter of an exception? 572 COMMON LAW REPORTS. T. T. 1857. and because the said jury was not returned or summoned by the CommonPleas. Sheriff of said county ; and because the said jury was not duly ALDBORO' returned or summoned, in pursuance and according to the statute, v. BLAND. &c., for the trial of said case. The plaintiffs replied, by way of counterplea, that by an order dated the 10th day of February 1857, made by Mr. Justice Crampton, one of the Justices of the Court of Queen's Bench in Ireland, then presiding as Judge in Chamber for the three Law Courts, pursuant to the provisions of the statute in that behalf, it was ordered that one of the Coroners of the county of Kildare should attend before the Master of the Court of Common Pleas, with the books containing the names and additions of the special jurors of said county, and with separate cards containing the numbers to refer to said books, to enable the said Master to proced to ballot for a special jury to try the issue between the plaintiffs and the defendants, who had taken defence, in accordance to the practice which existed previous to the Act of the 16 & 17 Vic., c. 113. That afterwards, R. S. Hayes, one of the said Coroners of and for the said county of Kildare, having obtained from Edward Howe, then being the Sub-sheriff of said county of K., the said books containing the names and additions of the special jurors of said county, attended with said books and with separate cards, containing the numbers to refer to said book, on the 17th day of February 1857, at...