Queen's Bench THE QUEEN v. "to say-Because he saith that the said jurors so empaneled H. T. 1864. "as aforesaid were summoned to serve upon said jury for the "trial of the issues in this cause, by virtue and in pursuance "of a writ of venire facias and a writ of distringas juratores, "and not otherwise, or according to the form of the statutable "enactments in that case made and provided.'" "And because the said jury were not summoned under any "precept issued by the Judge of Assize to the Sheriff of the "said county, pursuant to the provisions in that behalf, of the "Common Law Procedure Amendment Act (Ireland), one thousand "eight hundred and fifty-three." 666 'And because the said jurors were not duly summoned, pur"suant to the provisions of the statute in that behalf made and "provided, six days before the commencement of the present As"sizes for the said county of Antrim." "And because the said jurors, or any of them, were not duly ""summoned, pursuant to the provisions of the statute in that "behalf made and provided, six days before the commencement "of the present pending Assizes for the said county.'" "And because the Sheriff of the said county did not, within "the time and in the manner prescribed by the statute passed "in the session of Parliament held in the third and fourth years "of the reign of his late Majesty King William the Fourth, "and intituled 'An Act for Consolidating and Amending the "Laws relating to Jurors and Juries in Ireland,' make out the special jurors' list for said county; and of which list, so ille"gally formed, the jurors, so empaneled as aforesaid, were ""selected."" 666 "And because the jurors, so empaneled as aforesaid, were "not taken or selected from a special jurors' list, made pursuant "to the statute in that case made and provided.” 666 "And because there is not, nor has there been, during the 'present year, any special jurors' list made or in existence, for "said county, pursuant to, or according to, the provisions of the "statute in that case made and provided." "And because there have been omitted from the special jurors' "list of the said county, for the present current year, the names REA. H. T. 1864. "of divers, to wit, two hundred persons, qualified and liable Queen's Bench "to serve on special juries for said county, and named as jurors "in the jurors' book for the current year of said county.'” THE QUEEN v. REA. "And because the juror's book for the current year of said "county has not been made pursuant to and in the manner "prescribed by the last-mentioned statute."" 666 "And because no general list was made out by the Justices "at Special Sessions for said county of Antrim, or any of them, containing the name or names of any person or persons qua"❝lified to serve as jurors for said county for the present year.”” "And because there was no general list whatever made out, containing the names of the persons, or of any person or persons, qualified to serve as jurors for the present current year, "for said county, by the Justices of said county, or any of 666 666 "And because issue is not yet joined in this cause."" "And because the said jurors, so empaneled, were struck "before issue was joined in this cause.' "And because issue was not joined in this cause previous "to the twenty-fourth day of July instant, and the said jury were struck and summoned previous to said day." 666 "And this the said John Rea is ready to verify.-Wherefore "he prayeth judgment, and that the said panel may be quashed."" To this challenge the prosecutor demurred. The demurrer was allowed; and the challenge to the array was overruled and disallowed. In Michaelmas Term 1863 the Court granted to the defendant a conditional order to set aside the verdict, and that a venire de novo be awarded, upon the ground that the demurrer to the challenge taken by the defendant to the array ought to have been overruled, and that the challenge ought to have been allowed, on the several grounds stated in the challenge. Against that conditional order cause was (this Term) shown by Brewster, H. H. Joy, Harrison, and Bruce. As to the last three causes of challenge, they are unintelligible. It is only necessary to state that, issue having been joined upon the record, and the case actually called on for trial, on the 25th of July 1863, the defendant then tendered a demurrer to the replications upon which issue had been joined: but the learned Judge refused to receive the demurrer, as the record had already been made up, and the case was at issue. The challenge contains an averment that the jury so empaneled were struck and summoned previous to the 24th of July. It is therefore averred that there was a jury summoned and empaneled, and that the jury, so summoned and empaneled, came. The substantial meaning of the challenge is, that the jury, so summoned, empaneled, and struck, were brought in under the Jury Acts, and not under the Common Law Procedure Act (Ireland) 1853— [FITZGERALD, J. Are the first two grounds more than introductory to the third, with a view to show the foundation on which the third rests?-Each is taken as a distinct ground of challenge: the word "because" precedes each clause. It is a mistake to suppose that any proceeding to summon and empanel the jury under the Common Law Procedure Act (Ireland) 1853, would have been right. That statute does not apply to criminal proceedings at all (section 3). Section 109 does not apply to such a case as this; and at all events is not compulsory, except in the first clause, "that no jury process shall be necessary or used in any action." But the present case is not "an action." There is not in the challenge any allegation that the Judges did not issue a precept; and, if they did issue one, it must have been to summon all civil and criminal jurors, which would have been sufficient.-[FITZGERALD, J. But on the record there is the old form of venire and distringas, which is quite inconsistent with the notion of a precept.]-But there is no averment that a precept was issued: the Court cannot hold that the Judge issued no precept. If he did issue a precept under section 109, it must have been a precept for the trial of all civil and criminal cases. Assume that, and that there was also a venire directed to the Sheriff, that would not in the least vitiate the summoning of the jurors under the Judge's precept, if there was one; and, if they were summoned at all, and there were two authorities H. T. 1864. THE QUEEN V. REA. THE QUEEN V. REA. H. T. 1864. for summoning them, the law would refer the matter to the right Queen's Bench authority, whichever it was; so that the challenge on that ground is insufficient under section 112. Special jurors may either be summoned for all cases, or a particular special jury may be struck for a particular case. Whichever way the jury was summoned is immaterial; for the Court cannot assume that the Judge did not issue a precept; and, if it was issued, the Sheriff was bound to summon every juror. In O'Neill (in error) v. The Queen (a) it was held that the Common Law Procedure Act (Ireland), 1853, did not affect the Judge's authority to order a Sheriff to return a jury in a criminal case, though the civil panel be not exhausted. Therefore, in the first place, the Common Law Procedure Act (Ireland), 1853, does not apply to this case; and, secondly, the venire is not taken away in all cases, which it must be in order to support this challenge. At all events the first ground of challenge, however it may be error on the record, is not the subject of a challenge to the array. A challenge to the array lies only for some act improperly done, or omitted to be done, by the Sheriff. In O'Connell v. The Queen (b) Tindal, C. J., said:-" The only ground upon which the challenge to the array is allowed by "the English law is, the unindifferency or default of the Sheriff." But the present challenge to the array rests on the ground that the jury was summoned under the distringas, instead of for something improperly done by the Sheriff antecedently to the time when he was put in motion by the writ of the Court, which he was bound to obey.-[FITZGERALD, J. But the judgment of the House of Lords did not touch that point ?]- Yes; Lord Denman was the only lord who dissented from that judgment of Tindal, C. J.-[FITZGERALD, J. Then the House of Lords reversed the judgment of the Court below on that point?]-It was reversed on another point; and Lord Denman's judgment was based on the averments of fraud.—[O'BRIEN, J. But those averments were of matters anterior to the time when the writ was given to the Sheriff.]-But Lord Denman went on the principle that fraud vitiates everything. (a) 4 Ir. Com. Law Rep. 221. (b) 11 Cl. & Fin. 232, 247. The third and fourth grounds of challenge are, in substance, that the 3 & 4 W. 4, c. 91, s. 18, is mandatory. Similar provisions as to summoning jurors have existed in the law from its foundation. By the 42 Edw. 3, c. 11, s. 3, the Sheriffs were to "array the panel "in Assizes four days at the least before the Sessions of the Jus"tices, upon pain of £20; so that the parties may have the view of "the panels, if they the same demand." Then it came to be considered whether, if the Sheriff failed to comply with the statute, the plaintiff was therefore turned round in his action? But it was held that, the statute being in the affirmative, it sufficed if the panels were arrayed two days before the Sessions: Brooke's Abr., tit. Parl. and Stat., pl. 70. So the law stood in England for a long time, until the 7 & 8 W. 3, c. 32, s. 5, directed the Sheriff to summon the jurors six days before at the least. There followed the 29 G. 2 (Ir.), c. 6, s. 2 (which is in substance and form the same as the present Act), and the 6 G. 4, c. 50, s. 25. There is not in the English books a single case of a challenge to the array because a juror was not summoned in time. In Edwards v. Harding (a), Power, B., said "that it had been decided in Lessee of Metge v. "Costello, in this Court, that the want of summons was no objection "between the parties." All the cases in Ireland have been decided at Nisi Prius. In Gillespie v. Cumming (b) the plaintiff, instead of demurring, took issue on the fact, which was found against him; and, though that case afterwards came before the Court of Exchequer, the point was not argued solemnly whether the statute was mandatory; but the question was as to the costs of the abortive trial: Gillespie v. Cumming (c). But, if the judgment of Pennefather, B., is right, the whole proceeding is bad if one juror be left unsummoned. The Dundalk Western Railway Company v. Gray (d) is no authority for anything, because it went upon the decision in Gillespie v. Cumming. No distringas having been allowed, there was no challenge to the array there. There are other decisions on the point: Ronayne v. Elliott (e); Lessee Lord (b) 1 Cr. & Dix, Cir. Cas. 294. (a) Vern. & Scriv. 100. (e) Ir. Cir. Cas. 215. H. T. 1864. THE QUEEN V. REA. |