The Sun.
London, England, 1841-08-11 00:00:00

OXFORD ClRCUlT—Gloucester, August 9.

CIVIL COURT.—(Before Mr. Justice COLERIDGE.)
At an early hour this morning the court was crowded,
in the expectation that the trial respecting the validity
of the late James Wood's will would at length be heard.
At nine o'clock Mr. Justice Coleridge took his seat upon
the bench, and the case of Wood, Baronet, and others,
v. Thompson, was called on.
Mr. Kelly, Mr. Austen, Mr. Butt, and Mr. W. Cripps,
appeared for the plaintiff.
Sir Frederick Pollock, Mr. Sergeant Talfourd, Mr.
Charles Phillips, Mr. Whitmore, and Mr. J. W. Smith,
for the defendant.
The list of special jurors was then called over, but
seven only answered to their names. Mr. Justice Cole-
ridge then imposed a fine of 501. upon each of the absent
jurors, who had been regularly summoned, and for whose
non-appearance no valid excuse was offered.
Mr. KELLY, for the plaintiffs, then prayed a tales.
Sir F. PoLLocx opposed the application. He sub-
mitted that this was not the case of an ordinary action,
but of a feigned issue directed by the Master of the
Rolls for his information. The order of , the Master of
the Rolls directed that the issue should be tried "by a
Special Jury, to be nominated from special Jurors of
the said county residing not less than twelve miles from
the city of Gloucester." These were, therefore, not or-
dinary Special Jurors, but Jurors of a particular de-
scription. There was no provision in the order for try-
ing the case by any other Jurors. The Court, there-
fore, could not take upon itself to determine whether
any other Jurors should be put into the box to try the
cause, and a tales, therefore, could not be granted.`
Mr. Kelly, Mr. Austen, Mr. Butt, and Mr. Cripps
were heard in support of the- -application. They con-
tended that the case before the Court was a common law
action in the Court of Queen's Bench. The record, the
Jury panel, and the venire were all in the ordinary form,
and the order of the Master of the Rolls' Court could not
affect the statute, empowering parties to a Special Jury
cause to pray a tales in the absence of Special Jurors.
Indeed, without the statute, there could be no Special
Jurors at all. All the powers given by the statute,
therefore, applied, as, for instance, the power to fine
Special Jurors for nonattendance, which had just been
exercised by the Court. As soon as the order for a trial
was made. the trial must comprise all the incidents of a
common trial. No authority had been cited to the con-

trary.
Mr.. Justice COLERIDGE stated that he recollected
something of the trial of an issue from the Court of Chan-
cery before Mr. Justice Erskine, at Exeter, respecting the
right to certain tithes, and applied to Mr. Butt to state
what course had been adopted on that occasion.
Mr. BUTT replied that the case was twice tried, that the
order was in the common form to be tried by a Special
Jury, and that neither party would pray a tales when
there was a deficiency of Special Jurors.
Mr. Justice COLERIDGE said that his impression was
that Mr. Justice Erskine had been of opinion that, un-
der the terms of the order in that case, he had no power
to call common jurors into the box.
His LORDSHIP then inquired by what authority a com-
mon jury panel was annexed to the record in the case,
as well as the special jury panel ?
Mr. Bellamy, the Clerk of Assize, stated that this was
the invariable course adopted in issues directed by the
Courts, as well as in ordinary actions.
Mr. KELLY stated that he had known several cases of
issues directed to be tried by
special juries, in which a
tales had been prayed, and cited in particular a cause of
Humphrey v. Vivian," tried in Cornwall three times,
under an order of the Master of the Rolls, upon all of
which occasions there had been talesmen en the Jury.
Mr. AUSTEN. on the same side, submitted that there
was nothing on the face of the proceedings which could
give the Court cognizance of the order of the Master of
the Rolls
Mr. Justice COLERIDGE said, as to that objection, he
should take immediate means to make himself cognizant
of the order.
Sir F. PoLT..oex was heard in reply. He observed
that the cases in which talesmen had been sworn on the
Jury, in the trial of issues directed to be tried by Special
Juries, were cases in which the consent of both parties
had been obtained, and where also there were no special
terms in the order. Now, here the defendant refused his
consent. If the argument on the other side were cor-
rect, the plaintiffs could pray a tales as a right, if there
was only one Special Juror in the box instead of seven ;
and how could a trial by one Special Juror and eleven
talesmen be satisfactory to the mind of the Master of the
Rolls? Besides, the order required not only that the Jurors
shall be special, but that they shall be Special Jurors resid-
ing more than twelve miles from Gloucester. If common
Jurors are called as talesmen, they may reside within the
town of Gloucester, yet there would be no power to chal-
lenge them; the order saying nothing as to where the Com-
mon Jurors should live. The special order of the Master
of the Rolls ought to be observed. The order generally
is, that the issues be tried, with liberty for each party to
move for a Special Jury, and in that case, perhaps, it
would follow the ordinary rules of .Special Juries, but it
would be most undesirable to try the cause now, unless
tried in a manner satisfactory to the Master of the Rolls,
because, if he were on that account to direct a new tria,l,
the present verdict, though wholly inoperative upon the
mind of the Court directing the issue, would embarrass a
future Jury in their inquiry.
Mr. Justice COLERIDGE, after conferring with Mr.
Justice Coltman, delivered his opinion at some length.
His Lordship said, that considering the extreme im-
portance of the trial, the largeness of the property in
dispute, the strong feeling which prevailed on the subject,
and the expense which the parties had been put to in
preparing for the trial, he came with some regret to the
conclusion lie had arrived at. The first thing to look at
was the probable result of justice or injustice to the par-
ties hereafter by proceeding to trial at present. The argu-
ment on behalf of the plaintiffs mainly turned on the point
whether his Lordship was bound to take notice of the order
ofthe Master of the Rolls, and it seemed to him (Mr. Justice
Coleridge) that he ought to look at it. Suppose, indeed,
that without looking at the order, his Lordship had ac-
ceded to the position of the plaintiffs, that all the inci-
dents of every Special Jury cause attached to the pre-
sent issue, and that on the prayer of either party a tales
had been ordered as a matter of right ; suppose the first
common juror called resided in the city of Gloucester ;
he could not, on that account, be challenged at common
law, but the defendant's counsel would then produce the
order limiting the jurors to persons residing twelve miles
from Gloucester. So that not a single ep could be
taken without the production of the order. Then the
order is precise and specific. It was impossible for his
Lordship to look into the mind of the Master of the Rolls,
and to say that he could have intended to allow that any
common Jurors should try the cause. If he had pro-
posed to allow common Jurors, it was probable he would
have stated from what part of the county they also
should be selected, but the order was entirely silent on
that point. Being of opinion, therefore, that this trial,
if it took place, would probably go for nothing in the
mind of the Master of the Rolls, and that another
trial would be directed, his Lordship thought it would be
more just to both parties that the trial should not proceed
at present. It sometimes happened that the facts of a
case are so little known at the time of a first trial, that a
second trial becomes necessary and just ; but unless the
case came within that exception (and his Lordship saw
no reason to apprehend that to be the case in this issue),
in ordinary cases a second trial is not so satisfactory as
the first, and it was therefore most undesirable to have a
useless rehearsal of the evidence in the cause, which
could only prejudice the minds of a future jury. Look-
ing, therefore, to the ends of justice, his Lordship
thought that there should be no tales allowed, and the
trial must be postponed.
Mr. KELLY then prayed his Lordship to postpone the
trial till to-morrow, in the hope of procuring the attend-
ance of a full Special Jury.
This his LORDSHIP declined.
Mr. KELLY then offered to try the cause by the seven
Special Jurors in the box, if the other side would
consent.
Sir P. POLLOCK said he thought the wisdom of our
ancestors had properly provided the number of twelve
Jurymen for the trial of disputed questions, and he
would certainly not take upon himself to upset
that provision, especially to try a cause which lie
took leave to say.had been most needlessly hurried on at
a most inappropriate time. The allusion of the Learned
Counsel was of course to the expected decision of the
Judicial Committee of the Privy Council on this case on
Monday next.