CHALLENGING A SPECIAL JUROR

New Zealand Times, Volume XXXIV, Issue 5554, 16 January 1879, Page 3

CHALLENGING A SPECIAL JUROR

DIFFICULT POINTS OP PBACTICE. Quite a novel feature presented itself at the opening of the nisi prius sittings of the Supreme Court yesterday, and the points of practice involved were of such difficulty that his Honor the Chief Justice and the learned counsel engaged in the cause were not a little puzzled as to the course which should be followed uuder the circumstances. ;

The case of Bishop v. Macdonald had been called, and three of the special jury summoned had answered to their names and taken their seats. The fourth name coming out of the bullot-box was that of Mr. Charles Effingham Capper, and before. that gentleman had taken his place in the jury box, Mr. E. M. Ollivier, who appeared for the plaintiff, intimated that he desired to challenge Mr. Capper. His Honor said lie had an objection to a challenge being made at the trial; it was a most inconvenient thing to do, and the time for having Mr. Capper’s name omitted was when the jury list was being struck. He was not quite sure whether the challenge could now take place. Mr. Ollivier said it would not be open for him to make a peremptory challenge ; but he now challenged for cause. He apprehended that this declaration was sufficient, and that he had nothing to prove at present, but had only to declare that he challenged for cause, and go fully into the proof afterwards.

After some discussion as to the course to be pursued,

His Honor asked Mr. Ollivier to state the grounds of his objection to Mr. Capper being sworn as a special juror. Mr. Ollivier said he challenged Mr. Capper on the ground that that gentleman was elected creditors’ trustee in the bankrupt estate of Alfred Henry McLean. The defendant in the action was the successor iu that capacity to Mr. Capper, and represented the same estate in respect to which the cause of action arose, and the decision of the jury would depend largely on the transactions during the time Mr. Capper was in office. Mr. Capper was pecuniarily interested in the action, being the sole manager of a large business firm which was a creditor to a considerable extent of the bankrupt. Mr. Capper so thoroughly identified himself with his employers’ interest that he was practically in the position of a creditor.

Mr. Travers said his learned friend had made a mistake in saying that Mr. Capper was elected creditors’ trustee in the estate of Mr. McLean. The defendant was elected trustee, and not Mr. Capper. With regard to the grounds stated by his learned friend, in the first place he (Mr. Travers) did not understand that the mere circumstance that Mr. Capper happened to hold a power of attorney representing some gentlemen who might or might not; be interested in the estate of Mr.jMcLean warranted the violent assumption that he was cx necessitate biassed to such an extent as to render him incapable of giving an honest verdict, and induce him to violate his oath. Mr. Ollivier asked his Honor to decide the matter. His Honor said there seemed to him to be sufficient reason for saying that Mr. Capper was objected to, and he would therefore stand aside.

Mr. Travers said that although it might seem to be a waste of time, an important precedent was involved, and. if the challenge were : allowed in the ease of Mr. Capper he (Mr. Travers) would Challenge all the other jurors pour avail for the purpose of compelling the trial of the cause.

His Honor said he was not quite sure what ought to be done. The point raised was quite a new one in the New Zealand practice, although a challenge for cause at the trial was a frequent occurrence in America. Still, he thought that in the course of their studies they ought all to have made themselves better acquainted with the subject, in order to;be prepared for any emergency that might arise. After consulting several authorities, his Honor said he thought Mr. Ollivier had made his challenge at too early a stage. ’ The dial-; lenge ought to be made when the juror came up to the book to be sworn. Twelve jurors were then called, and his Honor directed the crier to administer the oath to each respectively. ! Three jurors were sworn in due course, and when it came to Mr. Capper’s turn to | be; sworn,

Mr. Ollivier challenged Mr. Capper for cause already declared, adding that Messrs. Turnbull and Co. were large creditors: of McLean;-and the cause of action was against the trustee of the estate of McLean, and might affect the interests of all his creditors. Mr. Capper, on behalf of his principal, had taken an active part in attending meetings and directing the proceedings under the bankruptcy—directing, in fact, that this action should be brought. He was practically in the position of one of the guarantors. Mr. Travers urged that Mr. Capper was not disqualified in any sense of the word. Mr. Ollivier said he would- leave it to his Honor to decide the matter.

His Honor : Then I shall require to have proof, ; - Mr, Ollivier: said he would proceed to the proof, and would pay Mr. Capper the compliment of calling him in support of his application. ;

Charles Effingham Capper deposed : I represent the firm of W. and G-. Turnbull and> Co., merchants in this city. I hold a power of attorney, and am entrusted with the direction’of the business. We have a large business. I am entrusted with its direction and management. I act as Mr. Turnbull’s representative during his absence at Home. It is; eighteen months since he was last in Wellington. On other occasions he has been away fora number of years. I have acted for Mr. Turnbull for many years. I have attended several meetings of creditors of Alfred Henry McLean, on behalf of my principal, who was a creditor for upwards of £I2OO. • His Honor here suggested that the proper course was to swear two of the jurors to try thematter. ’ ,

Two of the: jurors (Messrs. Bbardman and Warbnrton) were then sworn to try whether Charles Effingham Capper stands indifferently; to try the issues between the parties-in this action, and a true verdict give according to the evidence. •

His Honor then read over to the jurors the evidence already given. Mr. Capper’s examination was about being resumed, when. His Honor said it was necessary that Mr, Capper should be re-sworn to give the truth, the whole truth, and nothing but the truth to the Court and triers.

Mr. Capper was accordingly re-sworn, and his Honor again read over the evidence already given. Examination resumed : I recollect attending the first meeting of creditors on behalf of Mr. Turnbull. I have attended other meetings since that time. I have taken an active part in the direction of the proceedings under the bankruptcy. I believe I attended a meeting of creditors in November last, at which the question of this action was discussed. I believe the formal decision arrived at W'as that Mr. Macdonald should defend the action on behalf of the creditors. A statement of the circumstances was made by Mr. Macdonald—namely, that an action was brought against him for the seizure of some goods in the bankrupt estate of Alfred Henry McLean. I understood clearly that it was an action which would more or less affect the interests of the estate.

Mr. Ollivier said he did not intend to call any further evidence. Mr. Travers said he had no questions to ask.

His Honsr, addressing the two jurors, said it was now for the triers to determine whether Mr. Capper stood indifferently to try the cause of action.

Mr. Boardman (after a moment’s consultation with his brother trier) : We determine that Mr. Capper should not sit, without any imputation upon him. Mr, Capper then retired. His Honor said the triers had to say yes or no to the question whether Mr. Capper stood indifferently, and the triers returned “No” for an answer. ' Mr. Travers desired to have the matter noted on the record, and the subject dropped.