Judge might, under the statute 35. Hen. 8. c. 6, have ordered them to return instanter a panel of tales de circumstantibus, to supply the deficiency of that particular Jury, but no fresh Jury would then have been summoned, and no new process awarded. But only one coroner being present, the cause necessarily went off, and new process became necessary, but that could properly authorize no more to be done than would have been done in Court, if both the coroners had been present. It is admitted, that by 3 Geo. 2, the Jury first struck must be the Jury to try the cause, and therefore an award of a venire to summon a second Jury was clearly a violation of the statute. [Bayley, J. That would be ground of error, if it was an objection at all; it cannot be urged, in support of the present motion.] It cannot be ground of error in the present case, because the Special Jury process: does not appear upon the record; but it is equally an irregularity, because the award to the coroner is in general terms "to cause to come twelve good and lawful men," which is inconsistent with the principle which characterises the selection of a Special Jury. If the original objection had been to the Jury in toto, the proceeding which has been adopted might have been correct; but the objection was to the tales only, and therefore the common law process was the only course left open to the coroner. But this process was altogether irregular, because the effect of it was to put two venires upon the same record, upon one of which something has been done. It is quite clear, that where any thing has been done upon one venire, and has not been objected to, that process must be amended and made complete, and another cannot be awarded; for the two venires cannot exist upon one record. Pretious v. Robinson (a), Willoughby v. Egerton (b), Pigot v. Pigot (c), Symonds v. Walsh (d), and (a) 2 Vent. 173. (b) Cro. Eliz. 853. (c) Cro. Car. 531. 1823. The KING v. DOLBY. herefore it was that they passed the statute, giving es de circumstantibus. 2 Hawk. P. C. lib. 2. c. 41. 21. The object of the law has always been to at the possibility of partiality, or any thing apning to a selection by the officer. Here the coroner ly returns a Special Jury in the first instance, but number of persons whom he has chosen to serve es. The coroner had no right to presume, that a ent number of Special Jurors would not attend. nost dangerous consequence might ensue, if he were ed to act on that principle. Possibly the very perwhom the defendant has previously challenged might elected by the coroner as tales, and might be the men to try his cause. [Bayley, J. This argument erely saying, that every public officer may abuse his rity.] It is shewing how he may, and the possibility use is enough to support the objection (b). Even mmon law none could be summoned on the tales out affording to the party accused the opportunity of Abr. Trial, 669. Vin. Abr. Trial, 5 T. R. 454. knowing before hand who they were; and the 42 Edw. 3. c. 11. expressly declares, that the names of the persons who are to serve on the inquest shall be returned into Court. It has been held, that that statute applies to both civil and criminal cases, 2. Hawk. P. C. lib. 2. c. 41. s. 21, and if the coroner has the power of summoning the Jury privately, and of his own mere motion, that statute would be in effect repealed. If the coroner has this power, what is there to prevent the sheriff from exercising it in all criminal cases; because the statute 7 & 8 Will. 3. c. 32, applies exclusively to civil cases? A tales de circumstantibus means ex vi termini, a Jury. of persons taken from those who are accidentally present, Neither the sheriff nor the coroner had any power to compel the attendance of persons so selected. If they had such power, the legislature would have provided some process for that purpose. For these reasons, it is clear, first, that the coroners had no authority to summon previous to the trial a tales de circumstantibus; second, that it was illegal to summon a Special Jury de novo; and third, that there being two venires on the record, the proceedings are altogether irregular, and the defendant is entitled to a new trial. The COURT took time to consider of the case, and judgment was now delivered by ABBOTT, C. J.-This was an application for a new trial. Two objections were taken to the proceedings, first, that the award of a venire facias juratores to the coroners, after a previous award of the like process to the sheriffs, which had in fact been acted upon, was an irregularity; and, second, that upon the prayer and award of a tales at the trial, and under which the cause was in fact tried, the tales ought to have been taken out 1823. The KING v. DOLBY. , (although that does not appear upon the record), riginal panel returned by the coroners contained, as ght, the very same names, and no others, as were ined in the panel returned by the sherffs, being the ns nominated under the rule of Court, and in conty with the statute. The whole proceeding, therewas in substance and effect, the same as if an octo cem tales had been awarded according to the ancient ice, prior to the acts of parliament, which gave the according to the mode now in use. From this it rs, that in point of fact, the cause has been tried e very principal jurors by whom, as it is contended e defendant, it ought to have been tried. We are fore of opinion, that there is not any sufficient ation for this objection, either upon or dehors' the d. As to the second objection, namely, that the ers should have taken the tales from such persons ght happen to be present, and ought not to have oned any persons of whom they might make a panel, e also of opinion, that this objection ought not to il. At the trial, no objection was taken to the perwho had been summoned, and who appeared, nor was it suggested that the coroners had, in the particular instance, acted from any improper motive or design. The objection was founded altogether upon general principles, and upon the supposed danger of permitting a sheriff, or a coroner, to secure the attendance of persons nominated by himself, and by those means, in effect, to select a part of the Jury Now, this objection is evidently contradictory to the whole principle and practice of the common law in this matter. By the common law, the person to whom the Jury process was directed, whether the sheriff or coroner, chose whom he could summon to attend and place on the panel, and if a full Jury did not appear, and an octo or decem tales was awarded at common law, the sheriff, or coroner, also selected the persons in execution of that process. The common law admits no such absurdity, as the taking by chance and hazard, those persons who are to discharge the solemn and important duties of Jurymen; but has provided that it shall be done by some known and responsible officer, who may be forthcoming, and punishable if he shall act amiss. Even the 35 Hen. 8. c. 6, which gave the tales de circumstantibus, as it is usually called, leaves a discretion to be exercised by the officer, and the provision was made, as appears plainly by the language of the fifth section," for the more speedy trial of issues," and not, as was suggested in argument, for the prevention of partiality. And by section 6, the sheriff, or other minister, is to name and appoint so many of such other able persons of the county as may be present at the said assizes, or Nisi Prius, as shall be sufficient to complete the number of Jurors required. Nomination and appointment, necessarily imply selection, and therefore in that case a discretion is left to be exercised by the officer, though the persons out of whom that selection is to be made are limited of necessity to such as may happen to attend at VOL. II. F 1828. The KING t. DOLBY. |