rescinding the rule, to give security for costs (Nicholson v. Milne, 1 H. & be 107. Nothing herein contained shall affect the right of a defendant to take down a cause for trial, after default by the plaintiff to proceed to trial as aforesaid; and it shall lawful for the defendant, after such default, to proceed to have the abstract of the issues settled in the same manner as the plaintiff might have done (c). (c) When the plaintiff' makes default in proceeding to trial, it is the Com- Trial by promon Law right of the defendant to make up the abstract, serve notice of trial, viso. and proceed to trial in the same manner as the plaintiff might have done; and the advantage of adopting this course, as compared with ruling the plaintiff under the preceding section, is, that while a rule under the preceding section is not conclusive between the parties, the verdict of the jury upon the trial by proviso is so. In the cases, moreover, which have been mentioned above (note (w), supra), where the defendant cannot rule the plaintiff, as, for instance, where a country cause has been made a remanet or a nonsuit, or verdict set aside, the defendant's only remedy is to take the cause down for trial by proviso (Wright v. Hodgens, 1 Ir. L. R. 268, Crawford v. Huddlestone, Glasc. 125; Williams v. Stewart, Law Rec. N. S. 171.) As When de to when the defendant may in such a case proceed to bring the cause down for trial by proviso, see M Mahon v. Ellis, 12 Ir. C. L. K. 437; Oakley v. Ooddeen, 11 C. B. N. S. 805. For a form of notice, see Chitty's Forms, fendant may 10th ed., p. 853; and see also Bell v. Nangle, 2 Jebb & S. 251. In replevin, prohibition, and error in fact, both parties being actors, the defendant may make up the record, and proceed to trial, although the plaintiff has committed no default; and see post, sections 228-230. As the defendant's right to take the cause down for trial by proviso is a Common Law right, the Court will not in general interfere to prevent him from exercising that right (Whittaker v. Mason, 6 Dowl. 429; Pickering v. Dunne, 1 Ir. L. T. 63). In Marsh v. Williams, 7 Ir. C. L. R. 99, an action was brought on a bill of exchange against an accommodation acceptor, to which the defendant pleaded infancy; and after notice of trial had been served no further proceedings were taken for more than two years. The defendant, thereupon, in order to be in a position to apply for a rule under the preceding section, and so entitle himself to the costs of the action, obtained a conditional serve notice. Will not be prevented from going to trial. Notice of trial by de Reg. Gen. H. T. 1853, r. 42. order pursuant to the 178th G. O. 1854, for liberty to proceed: the plaintiff showed cause upon the ground that the defendant had at the time of the indorsement of the bill represented himself to be of full age, and it was held notwithstanding, that the defendant was entitled to an absolute order in order that he might at all events exercise his Comomn Law right of taking down the record for trial by proviso. 108. When a defendant shall be entitled to go to trial as fendant, 15 & aforesaid, he may proceed without any rule or order for that 16.76, purpose, and the same notice of trial shall be given as in ordinary cases, and if abstracts are entered for trial both by the plaintiff and the defendant, the defendant's abstract shall be treated as standing next in order after the plaintiff's abstract in the list of causes, and the trial of the cause may take place accordingly (d). (d) Where no proceedings have been taken in the cause after the filing of the defence for a year and a day, and no compromise is depending, the defendant must before serving notice of trial by proviso enter a rule to proceed pursuant to the 178th G. O.; otherwise his proceeding will be irregular (Gardiner v. Gardiner, 14 Ir. Ch. R. Ap. 31); and see M'Mahon v. Ellis, 12 Ir. C. L. Rep. 437. Where the plaintiff does not appear at the trial, and the issue lies upon him, the defendant should not go into his case and take a verdict, but should apply to have the plaintiff nonsuited, Ch. Ar. Pr., 12th ed. p. 1493; 2 Wms. Saunds. 336 b. If, however, he takes a verdict the Court will not set it aside except for the purpose of allowing a nonsuit to be entered (Hodgson v. Forster, 1 B. & C. 110). With respect to juries and jury process (e): 109. 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 for the assizes shall direct that the jurors be summoned for the trial of all issues, whether civil or criminal (f), which may come on for trial at the assizes, and the jurors shall thereupon be summoned in like manner as at present (g). (e) This and the following sections provide for the summoning of juries for the trial of issues in fact. Both in town and country causes (except in the cases mentioned infra, note (f)) the juries are summoned pursuant to the precept of the Judge to the sheriff. If the plaintiff intends to have the cause tried by a special jury, he should give notice of his intention to the defendant at such time as it would be necessary to give notice of trial; and if the defendant intends to have a special jury, he should give the plaintiff a like notice six days before the first day of the sittings or assizes (sect. 113). The Court or a Judge may, however, at any time order the cause to be tried by a special jury (ib.). When either party intends to have the cause so tried, it is further necessary to give notice of such intention to the sheriff six days before the first day of the sittings or assizes; and if such notice be not given a special jury need not be summoned or attend, and the cause may be tried by a common jury, unless otherwise ordered (sect. 115). The sheriff in every case is bound to keep a printed panel both of the common and special jurors in his office, or in the office of his returning officer, seven days before the first day of the sittings or assizes, and a copy of such panel must be annexed to the abstract (sects. 110, 111, 112). As to obtaining a jury under the old system see the next note and note (1), infra; and as to the qualifications of jurors and the different species of challenge, see note (g), infra. tem. (f) In The Queen v. Rea, 16 Ir. C. L. R. 428, it was held that the provi- Jury under sions of the above section do not apply to the case of a criminal information the old systried by a special jury struck under the old system, and that therefore the fact of such jury having been summoned by virtue of writs of venire and distringas, and not by virtue of the precept of the Judges of Assize is no ground of challenge to the array. So, also, when the jury in a civil case is struck under the old system, the provisions of the above section as to the issuing of a precept are inapplicable, and it is therefore no ground of challenge to the array that the jury has been returned and summoned without any precept issued by the Judges of Assize (Aldborough v. Bland, 7 Ir. C. L. R. 571). In such a case the jury should be summoned by means of the writs of venire and distringas or habeas corpora, as before the Act. Where sheriff dis (9) The sheriff is the proper officer in ordinary cases to summon the jurors; By whom but if he be disqualified, there is nothing in the 3 & 4 Wm. 4, c. 91, or in the summoned. present Act, to deprive the coroner of his Common Law function of acting in the place of the sheriff, whether the jury to be summoned be a common or a qualified. special jury (Aldborougk v. Bland, 7 Ir. C. L. R. 571). And where upon a writ of inquiry before the Master to assess damages the sheriff is either plaintiff or defendant, the coroner, it would appear, is the proper party to summon the jury (Cassidy v. St. Lawrence, 6 Ir. Jur. O. S. 315). The qualifications of jurymen, the grounds of exemption, and the manner in which the jurors' book and the panel are to be made up, is provided for by 3 & 4 Wm. 4, c. 91, amended by 8 & 9 Vict. c. 67, and 31 & 32 Vict. c. 75; and see also Mulrahy v. The Queen, L. R. 3 H. L. 306. When either party objects to the jury as returned by the sheriff, his course is to challenge. The Challenges. challenge may be either to the array or to the polls, i. e. to the individual juryman. A challenge to the array is an objection to all the jurors returned Challenges by the sheriff collectively, not for any defect in them, but for some partiality to the array. or default in the sheriff or his under officers who arrayed the panel, Ch. Ar. Pr., 12th ed., p. 433. A challenge to the polls is generally on the grounds either of want of qualification, or partiality. It is good ground of challenge to the array that the jurors were summoned by the plaintiff's attorney, who acted as under-sheriff, or that the name of another attorney was colourably used in place of the under-sheriff who was the real attorney, or that the jurors were summoned by the partner of the attorney of either of the parties (Stubber v. Wall, 1 Cr. & Dix, C. C. 54; Chapman v. M‘Gutchin, ib. 121, where also the form of the challenge may be seen). A challenge to the polls may be To the polls. sustained either on the ground of disqualification (Burrett v. Long, 7 Ir. L. R. 439, 3 H. L. Cas. 395; O'Connell v. Mansfield, 7 Ir. L. R. 179; 3 & 4 Wm. m. 4 c. 91, s. 20), or of partiality or bias. The principal grounds may be seen enumerated, Ch. Ar. Pr. 12th ed., 435, and see also Trials per Pais, p. 176. In Nowlan v. The King, 1 Huds. & Br. 164, an action having been brought to recover the amount of a defaulting county treasurer's security, a When to be made. How tried. A printed panel to be prepared and annexed to the abstract, 15 & 16 Vict. c. 76, s. 106. Sheriffs of summon common jurors, and prepare a panel to be annexed to the abstract, c. 76, s. 107. challenge to one of the jurors on the ground of his being a landholder of the county was held good, the grand jury of the county having at that time power under the 36 Geo. 3, c. 55, s. 55, to levy the entire amount of such defalcation off the county at large. As to challenges to a special jury, see post, note (i). A challenge either to the array or to the polls should not be made until a full jury has appeared. Whoever challenges first must finish all his challenges before the other begins. A challenge should be propounded in such a way that it may be at once placed upon the record, and the opposite party may then either demur or counterplead. As to the form of a challenge and counterplea, &c., see Trials per Pais, p. 206. A challenge may in general be tried in such way as the Court directs. When the challenge is what is called a principal challenge-i, e. such a one, that if it be found true, it is sufficient of itself without leaving anything to the discretion of the triers, it may be tried by the Court itself: Ch. Ar. Pr., 12th ed., pp. 437, 438. When a challenge to the polls is what is called a chal lenge to the favour-i. e. one where it is left to the discretion of the triers to say whether the juryman is indifferent, the challenge is tried by two jurors already sworn, or, if two have not been sworn, then by two triers appointed by the Court. If in such a case the triers try one juror, and he be found indifferent, he is sworn, and he and the two triers try the next; and when another juror is found indifferent, the two triers are superseded, and the first two jurors so sworn try the next. Although a party does not challenge, he may set aside a verdict obtained against him, if he can show that the trial was not fair and indifferent (Baylis v. Lucas, Cowp. 112). 110. A printed panel of the jurors summoned shall, seven days before the commission day, be made by the sheriff, and kept in the office of the returning officer in Dublin for inspection; and a printed copy of such panel on parchment shall be delivered by the sheriff to any party requiring the same, on payment of a fee of one shilling, and such copy shall be annexed to the abstract for Nisi Prius. 111. The sheriff's of the County and County of the City of Dublin respectively shall, pursuant to a precept under the hand of a Judge of any of the said Superior Courts, and without any other authority, summon a sufficient number of common jurors for the trial of all issues in the Superior Courts of Common Law and the Consolidated Nisi Prius Court in 15 & 16 Vict. like manner as before this Act; and seven days before the first day of each sittings a printed panel of the jurors so summoned for the trial of causes at such sittings shall be made by such sheriff, and kept in his office for public inspection; and a printed copy of such panel shall be delivered by the said sheriff to any party requiring the same, on payment of a fee of one shilling, and a copy on parchment shall be annexed to the abstract for Nisi Prius; and the said precept shall and moned to try all special & 16 Vict. c. 76, s. 108. jury cases, 15 may be in like form as the precept issued by the Judges of Assize, and one thereof shall suffice for each Term and after sittings, and for all the Superior Courts and the said Consolidated Nisi Prius Court; and it shall be the duty of the said sheriff's respectively to apply for and procure such precept to be issued in sufficient time before each Term to enable them to summon the persons in manner aforesaid and it shall be lawful for the several Courts or any Judge thereof at any time to issue such precept or precepts to summon jurors for disposing of the business pending in such Courts and in the Consolidated Nisi Prius Court, and to direct the time and place for which such jurors shall be summoned, and all such other matters as to such Court or Judge shall seem requisite. 112. The precept issued by the Judges of assize, and by Special the Judge of any of the said Superior Courts for cases in the jurors sumCounty and City of Dublin, as aforesaid, shall direct the sheriff to summon a sufficient number of special jurymen to be mentioned therein, not exceeding in country cases fortyeight in all, to try the special jury causes at the assizes, or in the several Superior Courts of Common Law in Dublin respectively; and the persons summoned in pursuance of such precept shall be the jury for trying the special jury causes at the assizes or after sittings respectively (h), subject to such right of challenge as the parties are now by law entitled to in the like cases (i), and subject to the like liability as to the payment of the costs of obtaining such special jury (j); and a printed panel of the special jurors so summoned shall be made, kept, delivered, and annexed to the abstract of Nisi Prius, in like time and manner and upon the same terms as herein before provided with reference to the panel of common jurors (); and upon the trial the special jury shall be balloted for and called in the order in which they shall be drawn from the box, in the same manner as common jurors; provided that the Court or a Judge, in such case as they or he may think fit, may order that a special jury be struck according to the present practice, and such order shall be a sufficient warrant for striking such special jury, and making a panel thereof for the trial of the particular cause (1). (h) As to the manner of obtaining a special jury, see ante, note (e), and sects. 113, 115, post. (i) Although doubts have been entertained, whether the array in special Challenges jury causes can be challenged (R. v. Johnson, 2 Str. 1000; R. v. Burridge, to special jury. 1 Str. 593), yet it would appear that such a right does exist (Aldborough v. |