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Decisions of the Superior Courts of New South Wales, 1788-1899

Howson v Stephens (1835) NSW Sel Cas (Dowling) 668; [1835] NSWSupC 101

jury trial

Supreme Court of New South Wales

13 June 1835

Source: Dowling: Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p. 5

The party applying for a special jury is the actor and must see his jury struck in time to try the cause otherwise the order lapses and the cause may be tried by a common jury.

The Court had granted a rule for trying this cause by a special jury at the instance of the defendants, after the plaintiff had moved that it be tried by a common jury, under ordinance 2 Wm 4 No. 3 (1832). The defendants had failed to take the steps necessary for trying the cause by a special jury, and the plaintiff had therefore lost a trial at the sittings at which the cause would have come on in course. A motion was now made for quashing the order for a special jury and setting the cause down for trial by a common jury this term. It was opposed on the ground that it was the duty of the plaintiff to have caused the special jury to be struck and see that his cause was tried in the manner awarded by the Court.

The Court. We think it was the duty of the party who obtained the order for a special jury to see that the jury was struck in time to try the cause. Otherwise we consider the order as a lapsed order and that the cause should be tried by a common jury at the prayer of the party first moving. The 30th section of the local ordinance shews that the party applying for a special jury must be the actor and pay all the expenses of the special jury, unless the judge at the trial certifies that the cause was fit to be tried in that manner. The rule must be absolute for trying the cause by a common jury. See Farren v. Richards (1818) [Farren v. Richards (1818) 2 Stark. 369, 171 E.R. 675].

Rule absolute.

Published by the Division of Law, Macquarie University