Exch. Cham.

v.

MANSFIELD.

spiracy, which is the very gist of the charge: Gregory v. Duke of E. T. 1846. Brunswick (a). There is, indeed, a statement of the belief on the part of the defendant, of the existence of a conspiracy; but that is O'CONNELL not sufficient: Mountney v. Watton (b). The justification of a libel must state issuable facts, not general charges of misconduct; and therefore, where a libel charged an attorney with general misconduct, by gross negligence, falsehood, prevarication, and excessive bills of costs in the business he had conducted for the defendant, a plea in justification, repeating the same general charges, without specifying the particular act of misconduct, was held insufficient on demurrer: Holmes v. Catesby (c). As great certainty is required in a plea of justification, as in an indictment: Hickinbotham v. Leach (d): and it is no excuse for uncertainty that the libel itself is uncertain: J'Anson v. Stuart (e); Lane v. Howman (f). If the pleas of justification are insufficient, judgment non obstante veredicto can be entered in a Court of Error: Hick v. Keats (g); Clement v. Lewis (h) and if such judgment be entered up, a venire de novo should be awarded to assess damages: Broom v. Nice (i).

Copinger and Macdonogh, contra.

The case of Long v. Barrett has decided, that being a Towncouncillor is a cause of disqualification to a special juror; and the only question is, whether the defendant in this case lapsed his time of making the objection? We say, that he has not; for the Municipal Act (3 & 4 W. 4, c. 108, s. 180) only disqualifies a person from serving on a jury summoned, not from being struck or returned to serve upon any jury; and the objection cannot be made until he is called on to serve upon the jury. Another reason, independent of the words of the Act, is, that the individual may be, at the time of the striking, at the time of the return of the distringas, and even at the time of being summoned to serve, a member of the Towncouncil, and he may cease to fill that office at the time he is called on to serve. He may be one of the members of the Town-council, who must vacate office under the provisions of the 58th and 61st sections, between the striking of the jury and the trial; and, in such case, could he be said to be disqualified from serving on the jury, because, at the time of striking, he was disqualified? or he may be

E. T. 1846. re-elected, in which case he would fill a different office from that Exch. Cham relied on in the counterplea. This shows that the proper time for O'CONNELL objecting is, when the juror comes to the book to be sworn. The

V.

MANSFIELD.

challenge is not a complete and perfect answer to the counterplea. No laches or default is expressly attributed to the party. It is not averred that the party did not take the objection before the officer, or what its fate was if taken; and the argument on the other side assumes the fact that the defendant had intentionally omitted to object, for the purpose of obtaining the advantage of a double strike; and then, arguing on the assumption of the fact of laches, the passages from Viner's Abridgment were read to the Court. This argument is, therefore, without foundation: Rex v. Griffin (a); Rex v. Johnson (b); Rex v. Burridge (c).

The next question arises on the pleas of justification. It is alleged that the gist of the libel was a conspiracy between the plaintiff and Dr. Rooney, and that our justificatiou ought to have been of a charge of conspiracy. But we deny that this crime is the gist of the libel, or that the inuendos attribute that character to it. The libel is not so pointed, and the justification is sufficient after verdict. "Popish persecution" is the heading, and the inuendo, explanatory of that, shows the gist of the libel, viz., that the plaintiff falsely and maliciously, and without probable cause, preferred a charge of felony, and that the motives were religious bigotry. Both facts are pleaded-the act done, and the intent and these have been found by the jury. In Mountney v. Watton there was a direct imputation of a felony; but there is here no allegation in terms of a conspiracy: Morrison v. Harmer (d). No certain criminal conspiracy is alleged in any of the inuendos, but the whole is interwoven with the proceedings at the police-office. It is true, that it was stated that the plaintiff had given out, that another person was associated with him in the charge of felony against Mr. Stack; and we justify each and every part of the criminality imputed to the plaintiff; but as to the participation imputed to the other, we allege, that the plaintiff said he was participant: and it is monstrous to argue, that we should, in justifying the libel against the plaintiff, have averred the guilt of an innocent man, who is no party to the record. It is sufficient that we have justified the gist of the libel, which is a false charge of felony made by the plaintiff against Mr. Stack: Edwards v. Bell (e); Clarke v. Taylor (f).

JACKSON, J.

E. T. 1846.

Exch. Cham.

v. MANSFIELD.

This case comes before the Court on a judgment, which is of record in the Court of Common Pleas. I say of record; because O'CONNELL the questions which have been raised and argued in this Court, were not discussed or adjudicated on there. One of the questions was raised and discussed before the Lord Chief Justice of the Common Pleas, and was ruled by his Lordship at the trial; but it did not come before the full Court afterwards.

Before I state the questions which this Court is called upon to decide, it will be convenient that I should state the outline of the record. The action was an action on the case for a libel, brought by Rickard O'Connell against Nicholas Murray Mansfield, the proprietor of the Evening Packet newspaper. The libel complained of is set out in the declaration, to which the defendant pleaded, first, the general issue, on which no question arises; and secondly, three special pleas of justification. Issue was joined on the plea of not guilty; and a replication de injuria was filed to the other pleas. No demurrer was taken to those pleas, and issue having been joined on them, a venire issued, respecting which, the only material circumstance is (as it appears to me), that the Nisi Prius day is the 26th of November 1845. The day of trial came; and on a certain juror coming to the book, a challenge was taken to him. This challenge was founded on the provisions of the 180th section of the Municipal Corporation Act, and much in the same terms as that taken in the case of Long v. Barrett. It was to the effect, that the juror was at the time of the trial, a member of the Town-council for the borough of Dublin, and, as such, disqualified from serving on the jury. To that challenge, the plaintiff put in a counter-plea, which was, in substance, that the said juror was a member of the Town-council for the borough of Dublin, at the time of striking the jury and of arraying the panel, and that such fact was well known to the defendant at that time. To that counter-plea there was a demurrer, which was ruled by the Lord Chief Justice in favour of the party taking it, and against the counterplea.

The case of Barrett in error v. Long, decided by this Court, has settled the law to a certain extent, and only to a certain extent. The first proposition decided in that case was, that the fact of a juror being a Town-councillor, was a good ground of disqualification; and the second proposition decided there was, that there might be a challenge in the case of a special juror. No other proposition was decided by that case: a new question, therefore, is raised in this case; for in that case there was nothing in the record to show that the cause of disqualification existed at the time of striking the

Nov. 18.

E. T. 1846. special jury; whereas, we have it on the record in this case, that the Exch. Cham. juror objected to was, at the time of striking the jury, and of arrayO'CONNELL ing the panel, a Town-councillor for the borough of Dublin; and that such fact was known to the party objecting at that time.

v. MANSFIELD.

Now, the effect of the decision of this Court, in Barrett in error v. Long, on this case, is, that the challenge taken in this case was a good challenge, and that, therefore, the objection was valid, unless the counterplea was a good answer to the challenge. That case does not decide, whether or not a party is bound to go before the officer, and make his objection to the juror there; nor whether he is precluded from taking the objection by way of challenge at the trial. The question then for us to determine is, whether this counterplea is good and sufficient in point of law? and if it be bad on general demurrer, then Barrett in error v. Long rules this case: and in that event, it will not, in all probability, be necessary to deliver any opinion on many other questions which have been raised. The counterplea appears to have been framed on the assumption, that if the juror objected to was a Town-councillor at the time of striking the jury, to the knowledge of the party objecting, he cannot afterwards challenge the same juror on that ground at the trial; and seems to admit, that knowledge of the disqualification was necessary to preclude a party from taking the challenge. And what is the prinprinciple involved in this point? It is this, that if a party is to be permitted to hold back an objection to a juror, of which he was cognizant at the time of striking the jury, it would give him the unfair advantage of a double strike; and there appears to me to be good sense in that argument. But then, the question is, does the counterplea put forward facts sufficient to show that the party here has endeavoured to gain such an unfair advantage? In my opinion, it does not. It is not averred, that he omitted to make the objection before the officer; and it is consistent with the counterplea, that he did object before the officer, and that the officer may have overruled the objection. Suppose such to have been the case, it has been said, that, under such circumstances, the proper course would have been, to apply to the Court by motion, to set the officer right. But is there any statute saying so, or any decided case to that effect, or any law that points out such a course, as that the party must, under such circumstances, go before the Court on motion, and forego his valuable right to put the question on the record, and subject it to the review of a tribunal of appeal? We have not been referred to any statute having such an effect; and therefore, I am not prepared to say, that, whether the party did or did not make his objection before the officer, he has foregone his right to have the question put on the

Exch. Cham.

บ. MANSFIELD.

record. It would appear to me then, that on the principle on which E. T. 1846. the counterplea is framed, that the party not being shown to have omitted making the objection, or to have unfairly taken the advan- O'CONNELL of a double strike, the counterplea is bad. We are not called upon to pronounce any opinion as to whether the party is bound to make the objection before the officer, but only whether or not the counterplea be good or bad in point of law. However, it appears to me, that it may be fairly questioned, whether the regulations prescribed by the Jury Act, apply to a cause of challenge, that did not exist until the passing of the Municipal Corporation Act. In other words, whether a party is bound to object on that ground before the officer? No doubt, he may go before the officer, and make his objection; but I am disposed to think, that by so doing, he is not ousted of his common law right to challenge at the trial."

Now, it is observable, that by the 58th and 61st sections of the Municipal Act, the disqualification in question is one that may cease from a variety of causes. In the 58th section will be found a number of grounds-such as taking holy orders, accepting certain places of profit, becoming bankrupt, or a contractor-which, supposing a juror to be at one period a Town-councillor, would cause him to cease holding the office, and so remove the disqualification. But that is not all; for the 61st section of the same Act provides, that in each and every year, one-third part of the Council shall go out of office, and prescribes the way in which the vacating Councillors are to be ascertained-in some cases, by the number of votes given for them on their election, and, in others, by the decision of the Corporation themselves as a body. There are, therefore, a variety of grounds on which a Town-councillor may cease to fill that office; and in order to discuss the matter before the officer, and to enable him to decide whether or not the juror objected to ought to be returned on the jury, it would be reasonable and necessary, that the parties should have time to make the proper inquiries on the subject. And here I would call attention to a clause in the Jury Act (the 30th section), which empowers the officer, in cases where the objection tion is made on the ground of affinity, to give time to the parties to inquire into the facts; and at the conclusion, it provides, that "in any "action or suit, it shall not afterwards be claimed, taken, or allowed, "or admitted as a cause or ground of challenge of any such persons, "that any such person was of collateral kindred or affinity with any "member of such corporate body." These two circumstances, viz., the allowance of time for inquiry, and the provision, that there should afterwards be no challenge to a juror on that ground, appear to me to amount to a legislative declaration, that it required a posi