The King against Edmonds and Others
| Jurisdiction | England & Wales |
| Judgment Date | 24 May 1821 |
| Date | 24 May 1821 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 1009
IN THE COURT OF KING'S BENCH.
[471] the king against edmonds and otheks. Thursday, May 24tb, 1821. No challenge can be taken either to the array or to the polls, until a full jury have appeared; and therefore, where the challenges are taken previously, they are irregularly made. The dissallowing of a challenge is not a ground for a new trial, but for a venire de novo; and every challenge must be propounded in such a way as that it may be put at the time upon the Nisi Prius Eecord, so that the adverse party may either demur, or counterplead, or deny the matter of challenge, in which last case only triers are to be appointed; and therefore, where the challenges were not put on the record, the defendants were held not to be in a condition to ask the opinion of this Court, as a matter of right, upon their sufficiency. There can be no challenge to the array on the ground of unindiffer-ency in the Master of the Crown Office, he being the officer of the Court expressly appointed to nominate the jury. The only remedy in such a case is to apply to the Court by motion to appoint some other officer to nominate the jury. The (a) Holroyd J. read the following MS. note of the case. The King against The Inhabitants of the Parish of Old Malton. Yorkshire Summer Assizes, 9th August, 1794. Cor. Lawrence J. This was an indictment for not repairing a highway. The defendants had submitted to a fine, which had been apportioned between the parishioners and the trustees of the turnpike (the road indicted being turnpike), pursuant to the power given by the General Turnpike Act. Holroyd applied for a further fine, the whole fine being laid out on the way, and the way being still out of repair. Lawrence J. doubted his power to give any further fine, on the ground that the Court had given their judgment ; and though Salk. 358, (see S. C. 6 Mod. 163) states that the judgment is not at an end by the defendants' coming in and submitting to a fine, and that if the road is not put in repair, writs of distringas shall issue against the defendants till the road is completed : he held, that those writs are now the only remedy on the present indictment; that the fine is the punishment for the neglect and offence of which the defendants are indicted; and though the Court may compel an actual repair, yet the punishment has been inflicted, and they cannot inflict a further punishment or fine; that the parish may be again indicted, and a fine imposed and apportioned on such indictment. Vide also 1 Hawk. c. 76, s. 94. 1010 THE KING V. EDMONDS 4B.&ALD.472- Master of the Crown Office, in nominating the jury, selected the names of the jurors, and did not take them by chance from the freeholders' book. He also took those only whose names had the addition of " esquire " or of some higher degree; and included some persons who were in the commission of the peace: Held, that in so doing he was perfectly right. He also included in his nomination some persons, who, as grand jurymen, had found the indictment, and persisted in his opinion as to their sufficiency, unless the Crown would consent to abandon them, which was done, and others were then substituted in their places: Held, that he was wrong in his opinion, but that there was no ground for presuming partiality. The sheriff's officer had neglected to summon one of. the 24 special jurymen returned on the pannel: Held, that this was no ground of challenge to the array for unindiffereney on the part of the sheriff. Held, also, that it is not competent to ask jurymen (whether special jurymen or talesman) if they have not, previously to the trial, expressed opinions hostile to the defendants and their cause, in order to found a challenge to the polls on that ground; but that such expressions must be proved by extrinsic evidence. This was an indictment against the defendants for a conspiracy, upon which they were tried and found guilty at the last Summer Assizes for the county of Warwick, before the Lord Chief Baron. Denman in last Michaelmas term obtained a rule nisi for a new trial on the three following grounds; 1st, that the Lord Chief Baron had refused to allow a challenge to the array, on the ground of the alleged unindiffereney of the Master of the Crown Office in nominating the special jury, and to appoint triers to try the facts alleged in support of that charge; 2dly, that he refused similarly to allow a challenge to the array, on the ground of the alleged unindiffereney of the sheriff, and to appoint triers as before; 3dly, that he refused to permit questions to be put to the special jurymen, as to whether they had expressed themselves adversely to the defendants before the trial, although (the special jury, [472] not being full,) he did permit such questions to be put to the talesman before they were sworn. The motion was supported by affidavits, stating the different grounds of the complaint against the Master of the Crown Office and the sheriff. Against this rule, cause was shewn in Hilary term, upon affidavits, by the Attorney-General and Solicitor-General, with whom were Vaughan Serjt. Clarke, Keader, Littledale, and Balguy. Denman and Hill were then heard in support of the rule. The whole facts and arguments on both sides are so fully stated by the Court in giving judgment, that it has been deemed expedient to omit them here. Abbott C.J. This was an application to the Court for a new trial. The cause (an indictment prosecuted by His Majesty's Attorney-General for a misdemeanour) came on to be tried by a special jury at the last Summer Assizes at Warwick. The special jury was struck in or soon after Hilary term, 1820, and the record was carried down for trial at the Spring Assizes in that year, but stood over until the summer. The ground of the motion for a new trial was the refusal to allow certain challenges, supposed to have been duly taken at the trial: viz. a challenge to the array, and a challenge to some of the polls. The challenge to the array was made on two distinct grounds; first, the supposed unindiffereney of the Master of the Crown Office, by whom the special jury was nominated. Secondly, the supposed unindiffereney of the sheriff. The supposed challenge to the polls was on the ground of opinions, supposed to have been expressed by the jurors hostile to the defendants, or some of them, and to their cause. Before I make any comments on these grounds, I will [473] observe that it is an established rule as to proceedings of this kind, that no challenge either to the array or to the polls can be taken, until a full jury shall have appeared, and if twelve of those named in the original pannel do not appear, a tales must be prayed, and the appearance of twelve obtained before any challenge be made. Upon this point, it will be sufficient to refer to the case of Vicars v. Langham, Hob. 235. In that case, the plaintiff first prayed a tales, and after the jury made full by tales, he challenged the whole pannel by exception to the sheriffs. The pannel was thereupon quashed, and a new jury returned by the coroners, by which the cause was tried. A writ of error was brought, and the exception taken thereon was, that the plaintiff having first prayed a tales to the sheriffs and obtained it, was estopped to challenge the pannel for exceptions to the sheriffs. But it was resolved, that there could be no challenge, neither to the pannel nor to the poll, till first there were a full jury, so that the jury 4B. & AID. 474. THE KING V. EDMONDS 1011 not appearing full, there was a necessity to have a tales, or else the challenge could not have been taken ; and so the cause would have remained pro defectu juratorum, if the plaintiff had not prayed it, for the defendant could not, and so the judgment was affirmed. Now every one of the challenges taken at this trial, was taken and made before a full jury bad appeared, and therefore made irregularly and out of season. It must further be observed, that the disallowing of a challenge is a ground not for a new trial, but for what is strictly and technically a venire de novo. The party complaining thereof applies to the Court, not for the exercise of the sound and legal discretion of the Judges, but for the benefit of an imperative rule of law, and the improper granting, [474] or the improper refusing of a challenge, is alike the 'foundation for a writ of error. Every challenge, either to the array or to the polls ought to be propounded in such a way, that it may be put at the time upon the Nisi Prius record, and so particular were they in early times, when challenges were more in use, that it was made a question in 27 H. 8, 13, B, pi. 38, whether it was not a fatal defect to omit the concluding of it, with an "et hoe paratus est verificare," and it was...
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