Irwin v Sir George Grey, Bart
| Jurisdiction | England & Wales |
| Judgment Date | 10 July 1865 |
| Date | 10 July 1865 |
| Court | Court of Common Pleas |
English Reports Citation: 144 E.R. 916
IN THE COURT OF COMMON PLEAS, IN THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, L. R. 1 C. P. 171; 35 L. J. C. P. 148. See Wilson v. Metropolitan Railway, 1871, L. R. 6 C. P. 381; O'Brien v. R., 1890, 26 L. R. Ir. 499.
irwin v. sir george grey, bart. July 10th, 18G5. [Affirmed in Exchequer Chamber, L. R. I C. P. 171; 35 L. J. C. P. 43: and iu House of Lords, L. R. 2 H. L. 20; 36 1.. J. C. P. 148. See Wikmi v. Metropolitan Railway, 1871, L. R. 6 C. P. 381 ; O'Brien v. R., 1890, 26 L. R. Ir. 499.] It is no ground of error in fact, that the whole of the special jurors struck were not summoned, or that the special jury panel was called over and a tales prayed before 10 a.m., the time for which the special jurors were summoned,-it not being coin-patent to the party to aver anything that is inconsistent with the record. This was error in fact brought by the plaintiff'. The record was as follows :- '' Middlesex. George O'Malley Irwin, in person, sues the Right Hon. Sir George Grey, Bart., who has been summoned to answer the said George O'Malley Irwin, by virtue of a writ issued on the 19th day of June, 1862, out of Her Majesty's court of Common Pleas, for that the plaintiff, having a claim for damages, to wit, to the amount of 100,0001., against Her Majesty, heretofore, to wit, on the 24th day of April, 1861, duly and according to the Petitions of Right Act, 1860, presented a petition of right to Her Majesty, dated, to wit, the day and year aforesaid, and intituled in the court of Queen's Bench, being a court in which the subject-matter of the aaid petition would have been cognizable if the same had been a matter in dispute between subject and subject, and stated in the margin the venue for the trial of the said petition : and the [586] said petition was addressed to Her Majesty in the form and to the effect in the schedule to the said act in that behalf annexed, and stated the Christian and surname and usual place of abode of the plaintiff, being the suppliant in the said petition, and of his attorney by whom the same waa presented, and set fortl) with conyenient certainty the facts entitling the plaintiff to relief, and was signed by the plaintiff's said attorney ; which petition was duly left with the secretary of stfte for the |hame department, in order that the same might belsubmitted toi Her! Majesty, for Her Majesty's gracious consideration, and in order that Her Majesty) if she should think fit, might grant her fiat that right be done : And afterwards, befofle the said! petition had been submitted to Her Majesty for Her Majesty's gracious consideration, the defendant became and was secretary of state for the home department, and had due notice of the premises and of the said petition : And thereupon, and whilst the defendant was such secretary, the plaintiff requested the defendant to bring, and as such secretary to submit the said petition to Her Majesty for Her Majesty's gracious consideration, in order that. Her Majesty, if she should think fit, might grant her fiat that right be done : And the plaintiff did all things necessary on his part, and all things on his part necessary to happen and exist happened and existed, and all times necessary to elapse elapsed, to entitle the plaintiff to have the said petition snbnptted by thje defendant to Her Majesty for Her Majesty's gracious consideration, in order that H$r Majeaty, if she should think fit, might grant her fiat that right be donai; And it became and was the duty of the defendant to submit the said petition to H|r Majssty ^or Her Majesty's gracious consideration, in order that Her Majesty, 19C.B.(H.a.)587. IRWIN V. GREY 917 if she should think fit, might grant her h'at that right be done : Vet the defendant did not nor would submit the said petition [587] to Her Majesty for Her Majesty's gracious consideration, in order that Her Majesty, if she should think fit, might grant her fiat that right be done ; but wholly neglected and refused so to do, and therein wholly failed and made default: And the plaintiff avers that he is personally interested in the performance of the said cluty, and that he has sustained and may sustain dalnage by the non-performance by the defendant of his said duty in that behalf; and that the performance of the said duty by the defendant has been demanded by the plaintiff of the defendant, and the defendant has refused and neglected to perform the same j and all conditions have been fulfilled, and all things have happened, and all times] have elapsed necessary to entitle the plaintiff to the performance of the said duty by the defendant, and to claim a writ of mandamus in that behalf : And the plaintiff hereby claims a writ of mandamus commanding the defendant to submit his said petition to Her Majesty for Her Majesty's gracious consideration, in order that Her Majesty may, if she should think fit, indorse her fiat that right be done; And the plaintiff claims 100,0001." Here followed a plea of not guilty, a joinder of issue, and a venire facias juratores. "The 14th day of January, in the year of our Lord, 1863. "Afterwards, on the said 14th day of January, 1863, come the plaintiff in person, and the defendant by the attorney aforesaid, and the Right Hon. Sir William Erie, Knight, Her Majesty's Chief Justice assigned to hold pleas in Her Majesty's court of the Bench hath sent hither his record had before him, in these words,-Afterwards, on the 26th day of November, 1862, at Westminster Hall, in the county of Middlesex, before the Et. Hon. Sir William Rrle, Knight, Her Majesty's Chief Justice assigned to hold pleas in Her Majesty's court of the Bench, come the within-named plaintiff [588] in person, and the within-named defendant by his attorney within named; and a jury of the said county, being summoned, also come, who, being sworn to try the matters in question between the said parties, upon their oath say that he the defendant is not guilty. "Therefore it is considered that the plaintiff take nothing by his said writ, and that the defendant do go thereof without day, &c., and that the defendant do recover against the plaintiff 1621. 4s. for his costs of defence. "The 15th day of January, 1863. "Afterwards, on the said loth day of January, 1H63, the plaintiff in person delivered to one of the Masters of this court a memorandum in writing, according to the statute iti that behalf, alleging that there was error in fact in the record and proceedings aforesaid, together with an affidavit of the matter of fact in which the said error consisted; and the said Master, according to the said statute, filed the said memorandum and affidavit. " The 22nd day of January, 18G3. "Afterwards, on the said 22nd day of January, 1863, comes here the said George O'Malley Irvviu, the plaintiff in person, and says that in the record and proceedings aforesaid, and also in the giving the judgment aforesaid, there is manifest error, in this, to wit, that, after the issue was joined in this cause, and before the trial of the said issue, to wit, on the 25th of October, 1862, it was duly ordered by the rule of this Honourable court dated Trinity Term, in the 26th year of the reign of Queen Victoria, Saturday!, the 25th October last, on the motion of Mr. Welsby, for the above-named defendant, 'That, at the expense of the defendant, 48 special jurors should be nominated out of the jurors' book and special jurors' list for the county of Middlesex, aud be reduced before the under-sheriff of the said county, of whom 12 should be struck [589] out by each party, and the remaining twenty-four jurors should be placed on a panel for the trial of the said cause, pursuant to the statute 6 G. 4, c. 50, and the Common Law Procedure Act, 1852 ; and that the sheriff of the said county do cause the said 24 jurors to be summoned to attend at the said trial, and that they do attend accordingly.' And the plaintiff further says that the following persons were, in pursuance of the said rule and the said statute in such case made and provided, duly struck as the jurors to be returned for the trial of the said issue,- Robert Gardner, 33 Gloucester Gardens, merchant, George Thomas Stroud, 6 Shepper- 9181 IRW1N U. GREY 19 C. B. (N. S.) 59ft ton Street^ Isliugtou, merchant, John Carter, 25 Durham Terrace, merchant, William Sparks, 16 Crescent Road, merchant, Peter Adams, 5 York Terrace, Islington, meiv chant, Edwin Abbott, 30...
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