The Sun.
London, England, 1865-06-22 00:00:00

George O'Malle

G. Grey, Bart.

This was an action under the Common Law Procedure
Act, which entitles an application to be made to a jury,
instead of to the judges, for a mandamus. The plaintiff
appears to have been the first to have availed himself of the
provisions of this act by applying for a mandamus to a jury,
commanding the right hon. defendant, as Secretary of State
for the Home Department, to submit his petition of right
to her Majesty, in order that it might be heard before the
judges of her Majesty's Court of Queen's Bench, pursuant
to the Petitions of Right Act, 1860. The error book, now
before the Court, stated that the writ issued on the 19th
June, 1862, and that the plaintiff, having a claim to .£lOO,OOO
against her Majesty, had presented his petition of right on
the 24th April, 1861, duly intituled in her Majesty's Court
of Queen's Bench, in which the matter would have been
cognisable if the same had been a matter in dispute between
subject and subject. The venue having been laid in the
county of Surrey by the plaintiff, was changed on the 10th
July, 1862, to Middlesex, by an application of the defen-
dant. The case, having been tried on the 4th Dec., 1,962,
when there was a verdict against the plaintiff's application
for the mandamus, now came on, after many postponements
by the defendant, for argument upon error in fact. The
error assigned, which was confessed on the record, was,
that eight out of the 24 special jurors who were struck had
not been summoned, and consequently that the defendant
was not entitled to the tales jury, which it was confessed
also on the record that the defendant had obtained before
10 o'clock, the hour fixed for the trial of the issue, and also
that the names of the special jurors were not even called
over at or after 10 o'clock, which was the hour named in
the summonses for their attendance in court. Those facts
having been confessed and admitted on the record, the
question for the decision of the Court was simply —Whether
the issue having been tried by a jury thus constituted, was
their verdict a nullity and not binding, and the judgment
founded on it erroneous ?

Mr. O'Malley Irwin appeared in person, and argued
that the principle for which he contended was not confined
to the narrow issue whether the sheriff had done wrong,
lout involved the larger and more important question,
whether a subject of the Queen has had the security of a
lawful jury for the trial of his most important interests ?
He impressed on the Court that the confessed end serious
wrong on the record was of the highest magnitude, and
important to a degree, which did not admit of exaggeration
to the administration of justice throughout the United
Kingdom, especially in Ireland, where special jurors struck,
but not summoned ; seven tales men, and only five special
jurors, were deemed sufficient to constitute a lawful jury
for the trial of a criminal case, even contrary to the strong-
est remonstrance. He referred to the 6th Geo. IV., c. 50,
secs. 25, 30, and 37, which enacts that "the summonses of
every man to serve on special juries shall be made,"
and " that every special jury, so struck, shall be
the jury returned for the trial of such issue." He also
quoted Newman v. Graham, 11 C. B. 153 ; wherein Mr.
Justice Cresswell stated, "The statute is. imperative that
the jury struck shall be the jury to try the issue," and
added, " that the Court of Exchequer had repeatedly so
decided." Chief Justice Jervis, in the -same case, also
stated as follows ;—" So has this Court. It is not compe-
tent to any Court to repeal a positive enactment of the
Legislature. The practice on the subject is quite settled."
Hague v. Hall, 3, Manning, 693, wherein Chief Justice
Tindal stated, "Every jury, so struck, shall be the jury
returned for trial of such issue." Haldane v. Beauclerk 3,
Exch. 658. Montague v. Smith, 21, Law Journal, Q.B. 73.
Co. Litt. 155. The Year Books, 17th and 20th Edwd. 3rd,
and O'Connell, Gavin Duffy, John Gray, and others, in
Errors v. the Queen, 11, Clark and Fironelly's Reports in

the House of Lords, 351—wherein Lord Denman stated,
" Can anything be more wrong than that the public officer
should enjoy full license to tamper with those sacred docu-
ments according to his pleasure," in reference to the special
jury summonses?

The Solicitor-General, who, with Mr. Hannon and Mr.
T. Jones, appeared for defendant, argued that the allega-
tions in the assignment of error did not show any ground
of error, and was bad, as contradicting the record; and
that, even if the matters alleged in the assignment of error
be true, the same amounted, at most, to an irregularity,
and that the case having been submitted to a jury, the
plaintiff had waived the irregularity. In support of his
argument the learned Solicitor-General quoted Bacon's
Abridgment, Error, K. 5 ; Bawso v. Carrington, Crooke
James, 244 ; Hilbert v. Held, 2 Lord Raymond's Reports,
1,414 ; MalMs v. Wetby, 1 Lewins's Reports, 76; The King
v. Carlisle, 2, B and A, &c.
Mr. Justice Keating asked, could an irregularity be
argued on demurrer ?
The Solicitor-General replied there was no other way,
and maintained that everything appeared to have been re-
gular according to the record, and that the plaintiff could
not contradict the statements therein.
Mr. O'Malley Irwin, in reply, argued that the assignment
of error did not contradict the record, as alleged by the Soli-
citor-General. The record was indefinite, but the assign-
ment of error was definite and special,-introducing a new
fact, which did not contradict the record ; namely, " that
a special jury having been struck out and not summoned,
twelve special jurors did not attend." He admitted that a
jury came, but it was not the proper jury, namely, " the
special jury," as set out in the assignment of error. He
submitted, to the court that the entire argument of the
Solicitor-General was based on the assumption that
tlie assignment of error contradicted the record,
which was not the fact. He pressed on the court
the words of the statute, 6th George IV., c. 50,

and of the Common Law Procedure Act, 1852, which
were imperative. That there was no doubt about it, and
that it was not competent for the learned Solicitor-General
b repeal the express and positive enactment of the Legis-
lature, " that the jury struck should be the jury to try the
issue." That no authority was cited, or could be, to over-
rule the numerous cases, declaims, and rulings which he
had cited to the court of the eminent Chief Justices of the
Queen's Bench and Common Pleas, and of the Lord Chief
Baron, Sir Frederick Pollock, as well as of the House of
Lords in the case of " O'Connell v. The Queen, in Error."
As to the plaintiff having waived the irregularity, he re-
ferred to " Chitty's Archibald," 1458 and 1461, to show
that tliere could be no waivers when the proceedings were
unwarranted and a nullity, as in the present case, and
also that there could be no waivers without know-
ledge. That it was not possible for the plain-
tiff to have known that there was irregularity before or
when the jury were sworn, as the nominated special
jurors were, as confessed on the record, not even called on
at or after 10 o'clock, at which hour the plaintiff arrived,
and which was the hour named for the attendance of the
special jurors and the Court to sit. Until that hour came,
in fact there was no Court, and the tales jury might
as well have been arraigned in the private chamber of the
right hon. defendant in tho Home-office as when and
wherever it had been.
The Court took time to consider its judgment, and
stated that it would be given on the 10th of next July.
Mr. Irwin humbly objected to the delay in the giving of
the judgment.

RAILWAY INTELLIGENCE.

8 507

SEVENOAKS, MAIDSTONE, AND TUNBRIDGE,

Yesterday an extraordinary general meeting of
this company was held at the Victoria Station, Pim-
lico ; Mr. G. F. Holroyd in the chair.
The CHAIRMAN said the meeting had been con-
vened for the purpose of sanctioning an agreement
which had been concluded with the London, Chat-
ham, and Dover Railway Company, and which in-
sured the completion of the line from Otford to
Maidstone within two years. By the agreement the
London, Chatham, and Dover Company were to
take a lease of it at £14,500 per annum for 999 years,
which was equivalent to 5 per cent. on £290,000.
The Sevenoaks Company were to construct the line
between Otford and Maidstone, and for that pur-
pose they had entered into a contract with Messrs.
Peto, Betts, and Crampton. It was expected that
a considerable traffic would pass over both lines to
and from Maidstone. He then moved a formal re-
solution sanctioning the agreement for leasing the
Maidstone Extension line to the London, Chatham,
and Dover Company.
Sir C. RoNEY seconded the motion, which was
carried unanimously, and a vote of thanks to the
chairman closed the proceedings.