sheriff to return tardè, if the distringas be not delivered to him in sufficient time to enable him to summon the jurors six days previously to the Nisi Prius Sittings or Assizes; but if he do not return tardè, neither party can object to the jurors when they appear in the box.* If the defendant be damnified or delayed by the default of the sheriff, he has his remedy against him by action. The 18th section of the 3 & 4 W. 4, c. 91, is merely directory, and the act contains no declaration that an omission to summon the jurors six days before the Sittings or Assizes shall render such summoning void; nor does the act contain any thing to make that omission the ground of a challenge to the array. There is nothing in the 18th section that requires the sheriff to summon the jurors in every case; his duties would be most onerous were he obliged to do so.-[CHIEF BARON. There I agree with you, and am disposed, as I have already said, to adopt the observation thrown out by Baron PENNEFATHER upon that point in Gillespie v. Cuming. I have no hesitation in saying, that I will be guided by that case; and, even if I had any doubt on my own mind, I should feel myself bound by that decision sitting here at Nisi Prius.]-Admitting Gillespie v. Cuming to be good law, it is not necessary to overrule it in order to decide against the challenge here, which is totally distinct in its form from the challenge in that case. The CHIEF BARON, having conferred with Barons PENNEFATHER and RICHARDS in Chamber, made the following observations, upon his return to Court: I have consulted with my Brothers PENNEFATHER and RICHARDS, and they agree with me in considering the challenge good, and in thinking that the demurrer must be overruled. This challenge is in substance as large as the one in Gillespie v. Cuming-for the gist of it is, that no jury were summoned competent to try the issue in this cause. Now, I am of opinion that if the jurors had been duly summoned under any distringas, they would have been a good jury, and competent to try the issue in the present case. In short, my learned Brethren concur with me in thinking that the challenge here is, in effect, the same as that in Gillespie v. Cuming, and that the decision in that case ought to be acted on in this. Demurrer overruled.+ • Sed vide Lessee Barton v. Quinn, Batty, 552. + See the case of Keogh v. Walker, in the C. P. ante, p. 210. 1840. WATERS v. HUGHES. Wednesday, January 22d. PRACTICE-CHANGING VENUE ON SPECIAL GROUNDS— 6 G. 4, c. 51. BOYSE . SMYTH. by an attorney for the reco In an action MR. COOPER, Q. C., on behalf of the defendant, moved that the venue be changed from the county of the city of Limerick to the county of Clare or the county of Limerick, being the next adjoining counties to the said city of Limerick. very of a bill of costs, the venue was changed, before plea pleaded, to the adjoining county from the county of the city of L., in which the venue was laid, upon an affidavit that a fair The affidavit of the defendant stated, that the action was brought for the recovery of a bill of costs, amounting to the sum of £1054. 6s. 7d.; that the plaintiff was and had been a resident attorney of the city of Limerick for upwards of thirty years, in extensive practice in the said city, and possessing considerable influence amongst the class of persons from whom the jury for the trial of civil business were selected. and impartial That he had been informed and believed that the jury in the city of Limerick were limited in number, and that deponent was convinced he could not have a fair and impartial trial in the said city of Limerick, and that a more satisfactory trial would be had in the county of Limerick or the next adjoining county of Clare, than in the said city of Limerick. trial could not be had there. Mr. Cooper.-The 6 G. 4, c. 51, s. 2, enacts" That in every action, "whether the same be transitory or local, which shall be prosecuted or "depending in any of his Majesty's Courts of Record in Dublin, if the veuue "in such action be laid in any county of a city, county of a town, or towu "corporate within Ireland, it shall and may be lawful for the Court in "which such action shall be pending, at the instance of any plaintiff or "defendant, to direct the issue or issues joined in such action to be tried "by a jury of the county next adjoining to such county of a city, county "of a town, or town corporate, if the said Court shall think fit to do "so."-[PENNEFATHER, B. This being an application to change the venue on special grounds regularly it ought not to be made before plea pleaded. It is inconvenient to discuss a motion which depends on the issue to be tried, before issue has been joined.*]-In Weatherby v. Goring (a); Bohrs v. Sessions (b), and some other cases, it is true, the Courts refused to allow the venue to be changed before issue joined; but those were all actions on specialties, in which respect they are dis tinguishable from the present. If the plaintiff mean fairly, he can have no objection to let this case be tried by a jury of the adjoining county of Limerick. (a) 3 B. & C. 552; 5 D. & R. 541. (b) 2 Dowl. P. C. 699. * See acc. per Bailey, J., Cotterill v. Dixon, 1 Cr. & M. 661. Mr. Bennett, Q. C., and Mr. D. R. Kane, contra. This motion is untenable for two reasons. First, it is contrary to the rule of practice, whereby an application to change the venue on special grounds is required to be made after issue joined, and not before; Archb. Prac. by Chitty, 1007, 6th ed., where the rule is represented as a general one.*-Secondly, it is casting an improper imputation on the character of the jurors of the city of Limerick, Per Curiam. We do not consider it as casting any imputation whatever on the character of the jurors of the city of Limerick. We understand the defendant merely to say that the plaintiff, from his professional intercourse with a certain class of persons, has acquired considerable influence in a particular district-now if the Court be of opinion that the circumstance of this gentleman having so long practised as an attorney in the city of Limerick may have given him a peculiar influence there, it appears to us, that without imputing to the plaintiff any corrupt intention to exercise an undue influence over the minds of the jurors on the one hand, or imputing to the jurors any corrupt liability to succumb to such influence on the other, we may make an order that the case shall be tried in a more neutral district. Besides, it has not been suggested on the part of the plaintiff that there is any likelihood of there being an unfair trial in the county of Limerick, or that he is likely to suffer any injury from the venue being removed there. In transitory actions, the Court has jurisdiction in such cases to change the venue, quite independently of the statute. With respect to the other objection, there is no inflexible rule upon the subject. Although the motion has been made at an inconvenient time, we ought not, perhaps, to expose ourselves to the still greater inconvenience of having it discussed on another occasion. Let the venue be changed from the county of the city of Limerick See Mathews v. Gregg, 2 Law Rec. 3 Ser. 276; Bank of Ireland v. Stewart, 2 Law Rec. 2 Ser. 179; also Hill v. Payne, 3 Dowl. P. C. 695; Youde v. Youde, 4 Dowl. P. C. 695; Mulvany v. White, ante, p. 33. 1840. BOYSE V. SMYTH. Thursday, January 30th. PRACTICE-CHANGING VENUE ON SPECIAL GROUNDS. SCANLAN and Wife, Administratrix of E. FITZMAURICE, deceased, v. MR. J. BLAKE, Q. C., for the defendants, moved that the venue laid in the declaration be changed from the county of the city of Cork to the county of Cork. The motion was grounded on the affidavit of the defendants' attorney, which stated that the action was brought in the name of Scanlan and wife against the defendants, who were three of the Directors of the Caledonian Insurance Company, for the purpose of recovering a sum of £1500, alleged to be due on foot of a policy of insurance effected by the said E. Fitzmaurice in his lifetime. That the policy of insurance (which was a life policy) had been entered into at the instance of a Mr. S.M Carthy, of the city of Cork, to whom it was subsequently assigned by Fitzmaurice. That the deponent and his partner, who were employed to defend the action, had ascertained, in the course of their inquiries, that the said S. M'Carthy had spread through the city of Cork, where the venue was laid, reports concerning the subject-matter in issue highly prejudicial and injurious to the defendants. The deponent stated his belief, grounded on the reasons detailed in the affidavit, that an impartial trial could not be had in the city of Cork. The defendants pleaded on the 29th instant, on which day notice of this motion was served. Mr. Barry, for the plaintiffs, contra. PENNEFATHER, B. Slight This case may very well be tried in the county of Cork. grounds are sufficient to induce the Court to change the venue from a county of a city to the adjoining county. In transitory actions, the Court had the power to do it before the statute, and independently of it; and although not quite a motion of course, it is next to it. Actions on policies of insurance, it is well known, are frequently tried in cities under very considerable disadvantages. The other Members of the Court concurred. COURT.-Let the venue in the declaration in this cause be changed from the county of the city of Cork to the county of Cork, without further motion.‡ * See Smyth v. Jordon, Cr. & Dix, A. N. C. 106. † 6 G. 4, c. 51, s. 2. See the preceding case. Upon the subject of changing or retaining the venue, on the ground that a fair and impartial trial cannot be had in the place in Tuesday, February 18th. IN CHAMBER. Coram the LORD CHIEF BARON and the rest of the BARONS. ASSIGNMENT OF JUDGMENT-MEMORIAL-APPOINT. BURROWES v. HOGAN. MR. RICHARD ANNESLEY BILLING applied in Chamber, that the assignment of the judgment obtained in Trinity Term 1824, by Peter Burrowes against John Hogan, might, on being assigned by Henry Hovenden, pursuant to the order of the High Court of Chancery of the 7th of February 1840, to Theobald Billing, be entered and enrolled as of record in this Court, and that the proper Officer should bedirected to enter and enrol such assignment.* The following were the facts of the case :-On the intermarriage of the Rev. A. B. Campbell, with Caroline Campbell, otherwise Hogan, a bond was executed by J. Hogan, the father of Caroline, to Peter Burrowes, Esq., as a trustee for the purposes of the marriage. Judgment was subsequently entered on said bond at the suit of Mr. Burrowes, the trustee. The money due on the judgment was now about to be paid off, but Mr. Burrowes refused to satisfy the judgment, alleging as a reason his disinclination, in consequence of his advanced age, to interfere in any business. A petition was accordingly presented in the Court of Chancery, under the statute 1 W. 4, c. 60, praying that it might be referred to one of the Masters to approve of a fit and proper person to be appointed a trustee in the place of the said P. Burrowes.t An order of reference was thereupon made to Wm. Henn, Esq., one of the Masters, by whom a report was made, approving See the 9 G. 2, c. 5, s. 1, which the venue is originally laid, or to which it is sought to be removed, see the following cases: Kelly v. Cavendish, 3 Law Rec. 2d Ser. 67; Lessee Keon v. Keon, id. 137; Lessee Dowdall v. Dowdall, 1 Law Rec. 1st Ser. 355; Lessee Jackson v. Lodge, 1 Ir. Law Rep. 161; Anon., 4 Law Rec. 2 Ser. 62; Vaughan v. Byrne, Hayes, 123; |