TMI Blog1917 (1) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff his relatives and those who were conducting his case and that juror and other jurors. At the trial there had been no challenge either to the array or to any individual juror. These proceedings ultimately failed, and by a judgment of the Superior Court, sitting as Court of review in Montreal, the judgment in favour of the plaintiff was upheld. From the judgment of the Court of Review this appeal is brought. The questions argued before the Board were whether, on the grounds alleged or either of them, the judgment at the trial ought to have been set aside, and whether the procedure taken for setting it aside was correct in form. There are also proceedings taken to set aside the verdict and judgment on the ground that the damages were excessive ; but these are standing over pending the decision of this appeal. What the appellants did on 10th, January 1913, was to present a petition in revocation of judgment known in Quebec as a requete civile which came on to be heard before Beaudin J. on 27th January who held without going into the evidence, that requete civile was not the proper way to raise the question. An appeal from this decision was taken to the Court of King&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen to correct his list. The prothonotary's duties are prescribed by Art. 430 and following sections of the Quebec Code of Civil procedure. He is bound to make alist of the persons qualified to serve as Jurors in Civil cases by taking from the list of persons qualified to serve as grand jurors in criminal cases which is deposited in his office the names of all persons residing within fifteen miles of his office in the order in which such names appear and he is to revise his list immediately after receiving notice from the sheriff that he has completed the revision of the grand jury list. Then when an order is made for the trial of a civil cause by a jury, the names are taken in order from the list to form a panel for that case, and proceedings are taken for reducing the number for trial of the cause which appear similar to what is known in this country as striking a jury under the old practice, still permissible by special order. On the hearing of the requete civile before Monet, J., it was proved that in the year 1912, when the cause was tried, these provisions had for several years been neglected by the sheriff. There had been no revision at all, and old lists had been use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the statute made the verdicts of all juries taken from the list ipso facto null and void so that no jury trials could be held until a, duly revised list had been prepared. As to the objects sought to be attained by these elaborate provisions for the mode of preparing the lists, there seem to be three things aimed at: first to distribute the burden of jury service equally between all liable to it; secondly to secure for the use of the Courts effective lists of jurors likely to attend when called, the names of dead men and absent or exempted men being left out; thirdly, to prevent the selection of particular individuals for any jury, commonly called; packing. The duties imposed on the sheriff appear intended for the first and second of these purposes, and those of the prothonotary for all the three. His duty to take the names in rotation prevents packing, and his taking the names next after those who last served distributes the burden. In this case the prothonotary had a list in fact, although an old one, and the men on it had all been qualified, and probably in most cases remained so. The names were taken in proper rotation and those ultimately sworn appear all to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a person assigned by mistake, but whose name was not written in the panel of jurors, and who had not the qualifications required by law for being one of the jury is illegal and a verdict returned by a jury so composed is null and should be quashed. This seems to have little to do with the matter, as here no juror is shown to have been disqualified, and if one had been, probably Monet J., would have held it to be prejudice . The difference of opinion amongst the judges in that case arose from the different views taken as to certain sections of the Criminal Code which have no application to the case now before the Board. McKay v. Glasgow and London Insurance Co. 32 Lower Canada Jurist, 125, also quoted, merely shows that if a juror is, in fact, interested and has not been challenged his interest not being known until after the trial, a new trial will be granted, which obviously has no bearing on the point now under consideration. Of the English cases, Mulcahy v. Reg. L. R. 3 H L. 306, was a writ of error on a criminal conviction taken to the House of Lords. The trial had taken place in one year under a commission opened in the previous year. There were lists of jurors duly made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her had died when the plaintiff was an infant so that Erasmus Barsalou had brought him up. Hector Barsalou no doubt knew the plaintiff fairly well as his brother's ward but that was all and both he and Erasmus gave evidence satisfactory to the judge as to interest in the cause. The case as to communications with the jury broke down. The witnesses who gave the strongest evidence as to it were claim agents of the appellant company and it was their duty to inform the appellant's legal advisers at once if during the trial they observed anything which at the time they really thought serious. During the trial appellants' counsel did have some information given him which led him to ask Hector Barsalou if he was allied to the plaintiff. He answered truly that he was not, and the question was not pushed further. The judge finds emphatically that the appellants proved no case on these points. The Court of Review adopted the findings of fact of the judge. Their Lordships would require a very strong case to induce them to differ with the judge who heard the witnesses, and on a consideration of the evidence they find no such case, but, on the contrary, agree with the judge. As to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
