Costs of special jury. Bland, 7 Ir. C. L. R. 571). The right of challenging an individual special juryman undoubtedly existed previous to the passing of 3 & 4 Wm. 4, c. 91, and was recognised by the 17 & 18 Geo. 3, c. 45, s. 9; and notwithstanding that sect. 20 of 3 & 4 Wm. 4, c. 91, is restricted to the case of a common juryman, the right still exists (Barrett v. Long, 3 H. L. Cas. 395; O'Connell v. Mansfield, 9 Ir. L. R. 179). (j) By sect. 27 of 3 & 4 Wm. 4, c. 91, it is provided that the person or party who shall apply for a special jury shall pay the fees for striking such jury, and all the expenses occasioned by the trial of the cause by the same, and shall not have any further or other allowance for the same upon taxation of costs than such person or party would be entitled unto in case the cause had been tried by a common jury, unless the Judge before whom the cause is tried shall immediately after the trial certify under his hand upon the back of the record that the same was a cause proper to be tried by a special jury. Accordingly, the rule being, that the party applying for a special jury has to pay the costs of obtaining same, unless the Judge certifies that the cause was a proper one to be tried by a special jury, it has been held that even in cases where the plaintiff obtains a verdict, but is entitled to no costs under sects. 126 and 243 of the present Act, the defendant, if he obtains a special jury, must pay the costs of same unless the Judge gives the prescribed certificate (M'Govern v. M'Namara, 12 Ir. C. L. R. Ap. 15; Kerr v. Midland Great Western Railway Co., 10 Ir. C. L. R. Ap. 45; Martin v. Cochrane, 5 Ir. L. R. 374). When a defendant obtained an order for a special jury, which had been struck accordingly, and the plaintiff afterwards entered a rule to discontinue, it was held that the plaintiff could not by so doing deprive the defendant of the opportunity of getting a verdict, and a certificate entitling him to his costs (Johnson v. Midland Railway Co., 3 Ir. C. L. R. 251); and see Clements v. George, 11 Moore, 510. When a special jury case is referred at Nisi Prius, and the consent contains no provision for the costs of the special jury, no allowance can be made for them, unless the consent provides otherwise (Labertouche v. Murray, 2 Huds. & Br. 541; Porter v. Murray, 3 Law Rec. O. S. 157). Where the verdict for the plaintiff was set aside and a second verdict was obtained by the plaintiff from a common jury, the defendant was ordered to pay for the special jury obtained by him on the occasion of the first trial, and not certified for by the Judge (Harrison v. Bradley, 3 Ir. L. R. 267). When the jury finds for the plaintiff on some of the issues, and for the defendant on others, the party who becomes entitled to the general costs of the cause will, in case he be the party who has obtained the special jury, be entitled to the costs of same, if the Judge certifies (Waters v. Howells, 8 Ex. 244; Blain v. Wilson, 3 Ir. L. R. 134). The Crown stands in the same position, as regards the costs of a special jury, as an ordinary plaintiff or defendant, and the person, therefore who applies on its behalf for a special jury is bound to pay the expenses of same where the Judge refuses to give a certificate (Attorney-General v. The Primate, 2 Jones, 362). The Judge should certify "immediately after the tificate to be verdict," i. e. within a reasonable time after it is pronounced (Christie v. Richardson, 2 Dowl. N. S. 503). In Johnson v. West of England Assurance Co., 2 Ir. Jur. O. S. 291, the certificate was given the day after the verdict; but where the Judge's signature to a certificate, which he in Court intimated his intention of giving, was not procured for some weeks after the trial, it was held that he had not certified in time (Grace v. Church, 3 G. & D. 591); and see Serrell v. Derbyshire Railway Co., 10 C. B, 910; Leech v. Lamb, 11 Ex. When cer given. Ir. 437. As to the costs of a special jury, where an issue is sent for trial from It is not possible to lay down any general rule as to what is a fit case to be tried by a special jury. If the case turns solely on a question of law, and there is no question of fact in dispute between the parties, a certificate will not be given (Wemyss v. Greenwood, 2 Car. & P. 483). (2) The special jurors need not, however, be summoned, unless notice be given as provided by sect. 115 of the Act. under the old system. (1) According to the practice prevailing at the passing of the present Act, Special jury and which was regulated by sect. 25 of 3 & 4 Wm. 4, c. 91, whenever an order was obtained for a special jury, the sheriff attended before the officer of the Court with the jurors' book and special jurors' list, and the officer thereupon selected by ballot forty-eight names from the special jurors' list; and, if necessary, from the jurors' book. Either party might show during the balloting that any of the jurors drawn was incapacitated, and another juror was then chosen in his place. When forty-eight names had been selected in this manner, a list of the jurors chosen was made out by the officer for both parties; and the list so made out was afterwards reduced, i. e. either party might strike out twelve names and twenty-four remaining jurors thereupon became the jury for the trial of the cause. As to the manner in which, when a special jury under the old system is struck, the jurors are to be summoned, see ante, p 123, note (ƒ). will be so struck. The granting of an application that a special jury may be struck according When a jury to the old system is in the discretion of the Court, and depends upon the peculiar facts and circumstances of each case (Magee v. Mark, 5 Ir. Jur. N. S. 131). As a general rule, the application will be granted in those cases only where the circumstances raise a reasonable presumption that an impartial jury cannot be obtained under the present practice (Weir v. Weir, 6 Ir. Jur. O. S. 143), and it will not be granted merely upon grounds which would likewise apply to the majority of cases (Hirsch v. The Beet Sugar Co., 6 Ir. Jur. O. S. 291; Belfast Water Co. v. Girdwood, 1 Ir. L. T. 661). The fact of the plaintiff and defendant being of different religions, or entertaining different political opinions, is not sufficient per se to induce the Court to order a jury to be struck under the old system, even in cases where strong prejudices may possibly operate (Smyly v. Hughes, 7 Ir. Jur. O. S. 139; Shirley v. Hughes, 16 Ir. C. L. R. Ap. 8; Magee v. Mark, 5 Ir. Jur. N. S. 131; Somers v. Reilly, 6 Ir. Jur. N. S. 295, sed vide M'Lester v. Fegan, 9 Ir. C. L. R. Ap. 43). Neither will it in general be sufficient ground for granting the application, that the applicant is a stranger, and unknown to the body of the jurors, while the other party is well known to them, and possessed of influence (Harrison v. Lynch, 3 Ir. C. L. R. 259; Codd v. Thompson, 5 Ir. Jur. N. S. 105); but where the venue was laid in the county of a city in which the number of jurors was limited, the Court permitted a jury to be struck under the old system, an affidavit showing that the plaintiff was possessed of considerable influence in the place where the venue was laid, and that several of his relatives would be most likely be upon the panel (Barron v. West of England Assurance Co., 3 Ir. C. L. R. 112). It has been held that notice of an application to strike a jury under the old How appli cation made. Mode of obtaining a special jury, c. 76, s. 109 15 & 16 Vict. Where cause tried twice. When short notice of trial is served. Applying to the Court. Remedy for delay by notice of trial by spe & 16 Vict. c. cial jury. 15 76, s. 111. system must be served upon the opposite party (Magee v. Mark, 5 Ir. Jur. N. S. 131; Grome v. Blake, 8 Ir. C. L. R. Ap. 68), although in the earlier cases; Fleming v. Taylor, 8 Ir. C.L. R. 75, Dickson v. Denroche, 3 Ir. C. L. R. 241, it was held that the application may be made ex parte. 113. The plaintiff in any action, except for the replevin of goods, shall be entitled to have the cause tried by a special jury, upon giving notice in writing to the defendant at such time as would be necessary for a notice of trial of his intention that the cause shall be so tried, and the plaintiff in an action for the replevin of goods, and the defendant in other cases, shall be so entitled, on giving the like notice, within six days before the first day of the assizes or after sittings respectively (m); provided that the Court or a Judge may at any time order that a cause shall be tried by a special jury, upon such terms as they or he shall think fit (n). (m) Under the old practice, when an order had been obtained for a special jury, and the cause had been accordingly tried, if the cause came on for trial a second time, either in consequence of the first jury having disagreed or their verdict having been set aside, the second trial might be had before a common jury although the order for the special jury had not been discharged (Dowdall v. Kelly, 6 Ir. Jur. O. S. 303; Walsh v. Whitty, 12 Ir. L. R. 216, Bell v. Nangle, 2 Ir. L. R. 296); and accordingly, if plaintiff or defendant wishes a cause which comes on for trial a second time to be tried by a special jury, he should take care to serve notice in the manner pointed out above of his intention to have the cause so tried. The plaintiff (except in replevin) must, in general, as will be seen above, give notice of his intention to have a special jury ten days before the trial, while the plaintiff in replevin and the defendant in other causes, must give a similar notice six days before the trial. Where, however, short notice of trial is given, the plaintiff may give the notice at the same time as he serves notice of trial; but, inasmuch as the defendant in such a case cannot give six days' notice to the plaintiff, it would follow that he will have to obtain an order of the Court in order to have the cause tried by a special jury. Upon the literal construction of the above section it would also follow that a defendant in replevin could not serve notice of his intention to have a special jury; however, having regard to the provisions of the next section, it seems that he may do so, and that it is not necessary for him to obtain an order from the Court for the purpose. (n) When the time for serving notice has elapsed, leave will be readily granted to have the cause tried by a special jury on showing any fair reason why the cause should be so tried (Cooper v. Owen, 8 Ir. C. L. R. Ap. 20, Scanlan v. M'Carthy, 5 Ir. Jur. N. S. 199). The party applying may, however, be ordered to pay the costs of the motion (Spong v. Fahy, 5 Ir. C. L. R. 353). 114. Where the defendant in any case, or plaintiff in an action for the replevin of goods, gives notice of his intention to try the cause by a special jury, the Court or a Judge, if satisfied that such notice is given for the purpose of delay, may order that the cause be tried by a common jury, or make such other order as to the trial of the cause as such Court or Judge shall think fit (0). (0) Previous to the passing of the Act, a rule for a special jury was frequently obtained by a defendant for the purpose of embarrassing and delaying the plaintiff. Under the above section, however, the Court or a Judge may order the cause to be tried by a common jury, when it appears that the intention of the defendant in obtaining a special jury was for the purpose of delay. The application should be supported by affidavit (Dunn v. Cox, 16 M. & W. 439, per Pollock, C. B.). 115. Where notice has been given to try by special jury, either party may, six days before the first day of the sittings in Dublin, or commission day of the assizes, give notice to the sheriff that such action is to be tried by a special jury; and in case no such notice be given, or the notice has not been given in sufficient time, no special jury need be summoned or attend, and the cause may be tried by a common jury, unless otherwise ordered by the Court or e Judge (p). (p) Where there is reason to apprehend that there are no other special jury cases for trial at the assizes, and in consequence of short notice of trial having been given, or from other causes, it has not been possible to give the requisite six-day notice to the sheriff, the parties must obtain an order from the Court in order to insure a special jury for the trial of the cause. 116. A writ or clause of view shall not be necessary or used, but whether the view is to be had by a common or special jury it shall be sufficient to obtain a rule of the Court or a Judge's order directing a view to be had, and directing the sheriff to have six or more of the jurors named in the panel chosen by consent, or, if the parties cannot agree, nominated by the proper officer of the Court at the place in question some convenient time before the trial; and the viewers shall have the place shown to them by two persons to be named in the order, and to be appointed by the Court or a Judge; and the sheriff, upon request, shall deliver to either party the names of the viewers, and shall also return their names to the registrar, for the purpose of their being called as jurymen upon the trial (q). (2) The first Statute enabling the parties in an action to have a view jury View jury. was the 4th Anne, c. 16, s. 8 (Eng.), 6th Anne, c. 10, s. 8 (Ir.) under which the Court was empowered to order special writs of distringas or habeas corpora to issue, by which the sheriff was commanded to have six out of the first twelve jurors named in the writs, or some greater number of them, at the place in question some convenient time before the trial, who then and there K ed. should have the matter in question shown to them by two persons named in the writs. The section in question was repealed by 3 & 4 Wm. 4, c. 91, s. 50; but by sect. 16 of that Act, provision was made in almost similar terms, enabling the Court to issue a writ of view; and by sect. 17 it was further provided, that where a view should be allowed in any case, those men who should have had the view, or such of them as should appear upon the jury to try the issue, or such of them as should not be challenged off, should be first sworn. These sections have not been repealed, except, in so far as they are affected by the above enactment. The Court cannot, even by consent, order a view in one county by a sheriff of another; nor can it compel a jury to go out of the limits of the county for such a purpose (Malins v. Lord Dunraven, 9 Jur. When grant- 690). In general a view jury can only be applied for in actions of a local nature, as, for instance, trespass, or the like (Stones v. Menhem, 2 Ex. 382, per Parke, B.); and accordingly in that case an order was refused, the action having been brought by a bricklayer for work and labour. So, also, a similar application has been refused in an action of covenant for dilapidations (Brown v. Redmond, 4 Ir. Jur. O. S. 252). Form of application. Proceedings before jurors so returned In all the Courts the application for a view jury must be upon notice (Irwin v. Lattimer, 8 Ir. C. L. R. Ap. 71). In Loughnan v. Dempsey, 6 Ir. Jur. N. S. 86, it appears to have been laid down that it is not necessary to state in the affidavit in support of the application the exact grounds of the necessity for a view. The order to be drawn up should state precisely the names of the viewers and of the showers, and the time and place of meeting (Taylor v. Thompson, 7 Bing. 403; Stones v. Menhem, 2 Ex. 382). The attorneys in the cause may be made the showers. See further, as to the inspection or examination by the parties or by the jury of premises or chattels in the possession or power of either party, ante, p. 44, sect. 47. 117. The jurors whose names are contained in such panel as aforesaid shall be the jurors to try the causes at the assizes and sittings for which they shall be summoned respectively; 15 & 16 Vict. and all such proceedings may be had and taken before such same as betore this Act. c. 76, s. 115. Tales. juries in like manner and with the like consequences in all respects as before or in respect of any jury summoned in pursuance of any writ or writs of Venire facias juratores, Distringas juratores, or Habeas corpora juratorum (r), before this Act, and also in respect of persons summoned to appear upon such juries, and in the event of an insufficient attendance of persons summoned and competent to act as jurors (8). (r) When the jury is struck under the old system, there is no necessity for a precept from the Judge for summoning the jurors, and in such a case the jury should be summoned by the same writs as before the Act: ante, p. 123, note (f). (s) Sect. 28 of 3 & 4 Wm. 4, c. 91, provides that in any suit or action, the Court shall, at the request of the parties, command the sheriff, as need shall require, to name and appoint twelve other able men of the County, &c., |