CURIOUS DIFFICULTY IN THE SUPREME COURT.

Evening Post, Volume XVII, Issue 320, 15 January 1879, Page 2

CURIOUS DIFFICULTY IN THE SUPREME COURT.

? There was a novel argument in tbe Supreme Court this morning. When Mr. C. E. Capper was called as a special juryman in the case of Bishop v. Macdonald, Mr. Ollivier, for the plaintiff, objected to his serving. His Honor said Mr. Ollivier should have struck Mr. Capper's name off at tbe proper time. He had no power to take notice of the objection now, unless the other side would consent. Mr. Travers, for the other side, said he could not give his consent. Mr. Ollivier said he must then resort to the challenge " for cause." As this right has oqly, so far as we are aware, been once before exercised in the colony, his Honor and the counsel on both sides were engaged, for more than an hour in settling preliminaries, diving into musty law-books to find the proper course of procedure. His Honor again asked Mr. Travers to consent to Mr. Capper's discharge and allow the case to proceed, but the request was again refused. His Honor said Mr. Ollivier must in that case state his objection to Mr. Capper, and the Judge could then decide the validity of the objection, or order it to be tried, by the jurymen already sworn, hut the latter course need not be resorted to if a jury could be got without Mr. Capper. Mr. Travers said he should prevent this by challenging every juror before he was sworn. His Honor said that in that case Mr. Travers would be in the same position as Mr. Ollivier, and would have to "state cause." Mr. Ollivier stated his objections to ba (1) that Mr. Capper was elected trustee in the estate of Alfred Maclean before Mr. Macdonald was elected to that position, and the case arose out of Mr. Macdonald's action as trustee in that estate; and (2) that 'Mr. Capper was the confidential servant— in fact, sole manager — for Messrs. W. and 6. Turnbull and Co., who are creditors of the estate, and that he had taken an active part in the outside proceedings which led to this action being brought. He (Mr. Ollivier) asked his Honor to decide the question. Mr. Travers wished it to go to a jury. About this time the whole proceedings were found to be informal, Mr. Ollivier having taken his objection at the wrong time. The jury were called and took their seats, and they were sworn separately. When it came to Mr. Capper's turn Mr. Ollivier took his objection, and proceeded to question Mr. Capper, who was sworn as a witness against himself, Sir. Ollivier saying that though he objected to Mr. Capper as a juryman he had sufficient confidence in him to take his evidence. About half the examination had been concluded when it was recollected that a jury had not been sworn. After some difficulty as to the form of oath to be administered Messrs. Boardman and Warburton were sworn as the jury. Mr. Capper's examination was than commenced again, but when he had got to about the same point in his evidence it was discovered that he had been sworn on the wrong form of oath. This was made right, and once mire he was examined. He admitted his Intimate connection with the firm of Turnbull k Co., and that they were largely interested in the bankrupt estate of Maclean, bat denied that he had ever been appointed trustee to the estate. The minute book also bore no record of any such appointment. Counsel then argued tbe point as to whether Mr. Capper was disqualified, and at last the jury decided that he was interested, at thevsame tune saying that they did not wish to cast any imputation upon Mr. Capper. Mr. Taylor was sworn in his stead. Mr. Ollivier bad not concluded his opening speech before the case was adjourned until the next sittings of the Court. The jury were accordingly discharged, this preliminary "pother" having thus been made unnecessary. The old right of challenge of which Mr. Ollivier availed himself is not con r erred by any statute, bmt is a common law right, dating from the days of the Flantaganets. It has been of late years only used once or twice, and the officers of the Court were put to no little difficulty to find the proper forms of procedure. __________________

How to Gain a High Position.— Ascend a mountain. I A truant bird that thinks its home a cage — A gaol-bird. *