O'NEILL v. THE QUEEN. 1854. Practice case of Cooke's was a very strong one, because the first panel then had been acted on to the extent of calling nine jurors. The return could not in that case be immediate, as the prisoner had a right to a copy of the panel; but, as Sir Michael Foster states it, that was the only reason why the new panel was not ordered to be Jury Process, returnable instanter, and why the trial was postponed. The next question is then, has that common law authority been taken away by any jury act? The act next preceding this present act was the 3 & 4 Will. 4, c. 91, s. 15, and, so far from the act taking away that right, that, while it regulates all about the trial of civil as well as criminal issues, it contains a specific proviso "that nothing therein contained shall be construed to prevent the Court of King's Bench, or any court of oyer and terminer, gaol delivery, or court of sessions of the peace, from respectively having and exercising the same power and authority as they may now have and exercise, in issuing any writ or precept, or in making any award or order, orally or otherwise, for the return of a jury for the trial of any issue before any of such courts respectively, or for the amending or enlarging the panel of jurors returned for the trial of any such issue; and the return to every such writ, precept, award or order, and the proceedings thereon, shall be made in the manner heretofore used and accustomed in such courts respectively-save and except that the jurors shall be returned from the body of the county, and not from any particular venue within the county, and shall be qualified according to this act." So far, therefore, as the Jury Act goes, it leaves untouched the common law power of the judge of gaol delivery. Now has this last act, this Common Law Procedure Act, taken away that power, or has it in any manner interfered with the saving made in the previous statute? For the purpose of ascertaining the intention of the Legislature let us look to the preamble, and see what it imports: Whereas it is expedient to simplify and amend the course of procedure as to the process, practice, pleadings and evidence in the superior courts of common law in Ireland, so as to make the same less dilatory and expensive, and to prevent substantial justice from being defeated by reason of the variety of forms of actions, and the technicalities and prolixities of pleadings, and the unnecessary length of records, and to consolidate the provisions of several statutes and rules of court relating to such proceedings: Be it therefore enacted," &c. According to the preamble, we have no right to expect anything touching criminal proceedings. In this act especially, section 3 provides that, "from and after the commencement of this act the several acts and parts of acts set forth in the schedule A. to this act annexed, so far as the said act or parts of any act relate to personal actions or actions of ejectment in the superior courts of law in Ireland, and no further, or otherwise to the extent to which such acts or parts of such acts are by such schedule expressed to be repealed are hereby repealed, except as to anything done before the commencement of this act, and except so far as may be necessary for the purpose of supporting 66 O'NEILL v. THE QUEEN. 1854. Practice and continuing proceedings heretofore taken," &c. And the 241st, "that the schedules annexed to this act shall be deemed to be a part of this act, with such modifications and departures as the particular facts of the case may render necessary." Now what do we find in the schedule annexed to this act? The portions of the 3 & 4 Will. 4, contained only in sections 10 and 12 Jury Process. and that only so far as they relate to personal actions. The 15th section of the 3 & 4 Will. 4, c. 91, which expressly saves the common law jurisdiction of the judge of gaol delivery, is not repealed, and the authority of the judge of gaol delivery still remains as it was at the common law. The parts of the 10th and 12th sections, so far only as they relate to personal actions, are repealed, and everything else re-enacted; and therefore, not alone by the common law does it exist, but also by the antecedent statute law is the power of the judge recognised. We then come to the only two sections of this act which import to deal with criminal proceedings, and which are entitled juries and jury process; and therefore all the rest of this act is to be looked on as not interfering with the previous law. I have already referred to the intention of the Legislature; but, by the 109th section, the statute has to a certain extent interfered with criminal proceedings; that section enacts that "no jury process shall be necessary or used in any action, but the precept issued by the judges of assize to the sheriff to summon jurors shall direct that the jurors be summoned for the trial of all issues, whether civil or criminal, which may come on for trial at the assizes, and the jurors shall thereupon be summoned in like manner as at present." We have then a complete extinguishment of the only jury process that antecedently existed. We have an extinguishment of any jury process on the trial of criminal issues; but, inasmuch as the Legislature took away all the means of getting a jury to try civil issues, they provided as to the manner in which such juries were to be summoned. They were to be summoned by inserting into the precept a direction to the sheriff that at the same time and on the same day he should summon jurors for the trial of civil as well as criminal issues; and, whether we read that as a provision that each individual should be summoned for the trial of both classes of issues, or whether he should summon one set for one purpose and another for the other, by either course he equally satisfies the precept. This, however, cannot in any way interfere with the power of the judge of gaol delivery, to order a jury to be returned instanter, for he does not derive his authority from this act, but he holds it independently, unless this act takes it away. This is an affirmative act, and I cannot find anything in it taking away that authority. Whatever be the construction of the act as to the duty of the sheriff, the common law authority of the judge is still untouched, and the trial in this case has therefore been properly conducted. If the trial had taken place with a panel under the precept directed by the last act, a violation of the act would have been fatal. The panel returned under this act, however, was quashed, O'NEILL v. THE QUEEN. 1854. PracticeJury Process. and, therefore, there was no panel under this or any other jury act in the court; the authority of the judge of gaol delivery might therefore be interposed; acting on that authority he got a panel returned instanter, and with that the trial took place. Without, therefore, at all deciding what may be the duty of the sheriff under this act, we have come to the conclusion that the trial was legally had. There was another objection taken, though not much relied on in argument by the prisoner's counsel, that it does not appear on the face of the record that, when the prisoner was called on for what he had to say why the court should not proceed to pronounce judgment, the words "against him" were omitted. Now we have on the record the finding of the jury immediately before the allocutus, that they had found the prisoner guilty of the crime charged against him, and that thereupon he was asked what he had to say why the court should not proceed to judgment. Why it is only to read the word judgment with the preceding words (they form part of the same sentence), and there could not be an imaginable doubt but that this was addressed to him; but, if there was any necessity for an authority, that case of Reg. v. O'Brien furnishes it. We are, therefore, unanimously of opinion that the judgment must be affirmed. The prisoner having been brought up under a habeas corpus, the Attorney-General now moved that he be remitted to the custody of the sheriff of the county of Antrim, and an order was accordingly made to that effect. COURT OF QUEEN'S BENCH. (Before LORD CAMPBELL, C.J.) January 24, 1855. REG. v. THE INHABITANTS OF BEDFORDSHIRE. Bridge-Liability to repair-Reputation-Private obligation. Indictment for nonrepair of a public bridge, and plea, setting up the duty of private persons, ratione tenure, to repair distinct parts of the bridge: Held, that evidence of reputation, such as declarations by deceased persons, that the county was the proper party to repair, was admissible. THIS was an indictment against the county for the nonrepair of Harold's Bridge, over the Ouse, in the county of Bedford. Plea.-That Earl de Grey, Mr. Alston, and Mrs. Trevor were respectively liable, ratione tenure, to repair the three northern arches of the bridge. At the trial before Cresswell, J., at Huntingdon, a verdict was found for the prosecutors. A rule nisi having been obtained, on the ground of the rejection of evidence of reputation, viz., the declaration of deceased persons as to the parties liable to repair, which was tendered at the trial. January 18. Tozer and Wells showed cause, and Worlledge and Pearse supported the rule. Authorities cited:-9 Hen. 3, c. 15; 13 Co. Rep. 33; Pritchard v. Powell, 10 Q. B. 589; R. v. Wavertree, 2 Moo. & Rob. 353; Drinkwater v. Porter, 7 C. & P. 181; R. v. Sutton, 8 A. & E. 516; Earl of Carnarvon v. Villabois, 13 M. & W. 313; Dunraven v. Lewellyn, 15 Q. B. 791; R. v. Antrobus, 2 A. & E. 793; Weeks v. Sparke, 1 M. & S. 686; Morewood v. Wood, 14 East, 329; Rogers v. Wood, 2 B. & Ad. 245; R. v. Cotton, 3 Camp. 444; Evans v. Rees, 10 A. & E. 151; Henley v. Lyme Regis, 8 Bligh. REG. บ. INHABITANTS OF BEDFORDSHIRE 1855. Evidence N. S. 690; R. v. Leigh, 10 A. & E. 39; Laybourn v. Crisp, 4 M. & W. JUDGMENT. LORD CAMPBELL, C. J.-The question which we have to determine in this case is, whether, on the trial of an indictment for the nonrepair of a public bridge, with a plea that third persons are bound to repair the bridge ratione tenure, evidence of reputation is admissible. The law of England lays down the rule that, on the trial of issues of fact before a jury, hearsay evidence is to be excluded, as the jury might often be misled by it; but it makes exceptions where a relaxation of the rule tends to the real investigation of truth and the attainment of justice. One of these exceptions relates to matters of public or general interest. The term "interest" here does not mean that which is interesting from gratifying curiosity, or the love of information and amusement; but that in which a class of the community has a pecuniary interest, or some interest by which their legal rights or liabilities are affected. The admissibility of the declarations of deceased persons in such cases is admitted, because these rights and liabilities are generally of ancient and obscure origin, and may be acted on only at distant intervals of time; and distinct proof of their existence, therefore, ought not to be required, because, with local matters in which the community are interested, all persons living in the neighbourhood are likely to be conversant, and common rights and liabilities being naturally discussed, what is talked of in public conversation respecting them may be presumed to be true, for conflicting interests would tend to contradictions from others if the statements were false; and thus a trustworthy reputation may arise from the concurrence of many parties unconnected with each other, who are all interested in investigating the subject. But that relaxation has not been, and ought not to be, extended to questions relating to matters of mere private interest; for, respecting these, direct proof may be given, and no trustworthy reputs. tion is likely to arise. Let us now, upon these principles, examine whether the issue joined on the record raises a question on which evidence of reputation ought to be admitted. It does involve matters of private right, namely, whether certain lands are burdened with the charge of repairing certain arches of a bridge-a matter of great importance to the owners of these lands; but does it not likewise relate to matter of public and general interest within the received legal meaning of the words? All the inhabitants of the county of Bedford, who have any property liable to be assessed to the county rate, have an interest in the question whether the bridge is to be repaired by the county, or whether the county is exempted from this burden, the obligation to repair it lying upon the owners of certain lands ratione tenure. The amount of the sum which every such inhabitant is liable to contribute to the county rate would be affected by the verdict of the jury. There is likewise |