The Mayor, Aldermen, and Burgesses of the Borough of Carmarthen v Evans and Others
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1842 |
| Date | 07 June 1842 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 473
EXCH. OF PLEAS.
S. C. 2 Dowl. (N. S.) 296; 11 L. J. Ex. 394.
10 m. * w. i74. the mayor, etc., of carmarthen v. evans 473 [274] the mayor, aldermen, and buegessks op the borough of carmarthen v. evanh and others. Exch. of Pleas. June 7, 1842.-A challenge to the array or to the polls ought to be propounded in such a way at the trial as that it may be then put upon the nisi prius record, so that the other party may either demur or counterplead, or deny the matter of challenge; and unless the challenges are so put on the record, the party is not in a condition as a matter of right to insist upon them. -Although the Court would probably in some cases, where a valid chiillenge has been made and over-ruled at nisi prius, but omitted to be put upon the record, grant a new trial, they will not do so where the party must have been aware of the ground of challenge before the trial, and might by moving to change the venue have obviated the objection. [S. C. 2 Dowl. (N. S.) 29G; 11 L. J. Ex. 394.] This was an action of assumpsit for rent payable in respect of the use and occupation of certain market stalls and premises, together with the tolls, brought by the mayor, aldermen, and burgesses of the borough of Carmarthen against the defendant Evans, and two persons who had become his sureties. The venue was laid in the county of the borough of Carmarthen; and Evans having pleaded non assumpsit, and the two other defendants having suffered judgment by default, the cause came on for trial before Maule, J., at the last Spring Assizes for the borough of Carmarthen. The defendant Brans then challenged the array, on the ground that the sheriff, who returned the jury panel, was a member of the corporation, and the polls, on the ground that each juryman called was likewise a member. These challenges were overruled by the learned Judge, and thereupon J. Evans, as counsel for the defendant Evans, declined to appear and try the cause. The challenge, however, was not put upon the record. The plaintiffs proceeded, and having recovered a verdict, the defendant Evans, in Eftater Term, obtained a rule to shew cause why the judgment should not be arrested, or the verdict set aside, on the ground of the validity of the above challenges. Against this rule E. V. Williams now shewed cause. The learned Judge having decided the validity of the challenges against the...
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Brown v Esmonde and Others
...4 B. & Ald. 483. The Queen v. O'Connell 11 Cl. & F. 155. Queen v. ReaUNK 16 Ir. C. L. R. 429. The Mayor of Caermarthen v. EvansENR 10 M. & W. 274. Rex v. JohnsonENR 2 Str. 1000. Walters v. Hughes 1 Cr. & Dix. Cir. Cas 333(note). Gillepie v. Cumming 1 Cr. & Dix, 294. Aldborough v. BlandUNK 7......