TRIAL BEFORE JURY

Hokitika Guardian, 12 October 1931, Page 7

TRIAL BEFORE JURY

BREACH OF PROMISE CASE. SMALL TOWN PROBLEM, Attention was drawn by bis Honour, Mr Justice MacGregor, in <t judgment delivered in the Supreme Court, to the dilliculty of obtaining ail entirely impartial jury in a small town where one of the parties in an action is well known. The- judgment was one in which lie dismissed the motion by the plaintiff in an action for breacn of promise of. marriage that the -case should"be tried by a jury. Plaintiff was .Ellen Veronica Those Bell, of Nelson, and defendant was William Robert Millier, of Dannevirke. At the hearing of the motion for trial by jury Mr Scott apepared for plaintiff and Mr 0. C. Mazengarb for defendant. His Honour said that counsel lor plaintiff had suggested that lie should follow the decision in a case in 1926 ill which Mr Justice Stringer had ordered trial by jury. On examining the report of that case he did not tilin'* Mr Justice Stringer had even professed to lay down a general rule that actions for breach of promise of marriage should be tried before a jury. On the collti'ary, his Honour said, Mr J list it'd Stringer’s judgment commmrned thus: “This is a motion on be* half of the plaintiff for an order that the action, which is one for breach of promise of marriage, should be tried before a jury. The action, being founded on contract, must according to the rules be tried by a judge alone, unless it is made to appear (the anus being upon the party applying) that in the words of Hide 207 it can be more conveniently tried before a jury. Whether or not an order for trial by jury should lie made is in the discretion ot the judge, and must be decided accord- I ihg to the circumstances of the particular case.” 1

His Honour agreed with this statement of the law, and said that'in the present case the one question for bis determination was whether it had been shown that it could be more conveniently tried before a jury than before a judge alone. In this connection the word “conveniently” should apparently he road so to include the term “justly.” His Honour said he had not been satisfied by plaintiff that the present action could be more conventiently tried before a jury. ■* The action was at present set down for trial at Nelson, where plaintiff resided, /and where her counsel, quite legitimately, insisted on it being tried. The defendant apparently resided in Dannevirke. .What might well happen in a case of the kind had been forcibly pointed out bv Mr Justice Edwards, who, when referring to the possible inconvenience or injustice in certain cases of trial before a jury, bad said: “When the trial is fixed to be held in a small town, where one of the parties is locally well known, it is com* raon knowledge that in such a case it is exceedingly difficult to obtain an entirely impartial jury.” “This difficulty might easily arise in the circumstances of the present case, and should, if possible, be avoided in the interest of justice,” bis Honour said. “The obvious way of avoiding it is. to allow the general rule in such cases to operate here, and to refuse the present application for exceptional treatment on tile broad ground that it lias not been made to appear that this particular case can be more conveniently tided, before a jury. In my opinion this action should be tried at Nelson by a judge without a jury.”