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for the court (Blackburn, Quain, and Archibald) held that
working days” meant, all days except Sundays, and that the alleged agreement was after breach and without consideration, and so no accord and satisfaction; though query whether the parties were not the best judges of that, and whether the amicable settlement of the matter on the spot was not a mutual benefit. (Holman v. Cape Copper Company.)
(To be continued.)
III.—THE QUALIFICATIONS OF SPECIAL AND
By T. W. ERLE, Associate, Common Pleas.
THE four principal alterations in the standards of qualifica
tions of Special and Common Jurors which were contemplated by the Juries Bill of last Session were as follows:
(1.) The raising of the standard of qualification of common jurors.
(2.) The extension of the qualification both of common and special jurors, so as to comprise such lodgers and other persons as are fully qualified by their social standing for serving on juries, and who occupy residences on a more or less permanent tenure, but who at present escape service in consequence of their tenancies not being of such a character as to fall within the operation of the existing jury law.
(3.) The final abandonment of the formula“ banker, merchant, or esquire," as the designation of a special juror, and
(4.) The addition to the list of special jurors in the city of London of one representative of each public company carrying on its business within the city.
Speaking in general terms of these proposals, they may be described as having been respectively based on the following considerations :
The raising of the qualification of common jurors is in accordance with the recommendation of the Judicature Commissioners. The alteration seems to be desirable for the purpose of relieving from service the lower class of journeymen and other persons of very humble means, to whom it is a serious loss, which they can but ill bear, to be withdrawn from their ordinary occupations, and kept in attendance for, perhaps, several days at a time, at some Court. In consequence of the decline in the value of money which has taken place in the course of the last forty or fifty years, the standard of qualification of common jurors under the existing law, which was passed in 1825, now reaches a lower class than was contemplated by that law. It would be necessary to raise the qualification still more than is now proposed if it were desired to make it proportionate to any of the various standards which were adopted at different periods in former times. But that it should be so fixed as to represent even the lowest of those standards is not practicable now, since the conscription for service in the jury box, which has of late years become very heavy, would then fall on too limited a section of the community.
The new qualification designed to include lodgers, is analogous to that which confers the lodger franchise. Its purpose is to reach those who rent furnished houses, and those who reside in lodgings for some substantial term, and not for any merely temporary object or transitory occupancy. The occupiers of furnished houses and of lodgings are now exempt from service on juries, as not being rated.
There is also a very large and increasing number of persons who live in residences, of which the flats in Victoria Street may be taken as a type, who ought to be, and would be, brought by the provisions of the Juries Bill upon the jury list. The flats, in every case, belong to a company, and the tenants, although their occupancies are, for all practical pur
poses, of separate and independent private houses, now, as not being rated, elude the levy for the jury box.
The principles advanced by the Juries Bill, as thore on which the standards of qualification of common jurors should be founded, met with general acquiescence. Great pains were taken by the Select Committee of the House of Commons in considering and fixing the figures throughout the several sections of the Bill in which these principles were embodied, and the standards thus established may, subject to two observations to be made presently, be confidently adopted as the best that can be devised. The conditions on which the qualification of special jurors should be based excited some controversy.
It was proposed that the standard of qualification for special jurors should be based upon rating or rental, only, to the exclusion of the designation of "banker, merchant, or esquire,” which now, concurrently, or alternatively, with rating, gives a man a title to be put upon the Special Jurors' List.
The grounds for this proposal were as follows: According to the law as it stood until the year 1870, such men, and such men only, as came within the category of “ banker, merchant, or esquite,” were to be classed as special jurors. It has been suggested by a high authority that the intention of the Legislature in its choice of the particular terms which were employed to define the status of a man fit to be a special juror was probably as follows:-Bankers were selected as being well versed in questions relating to money. Merchants were those whose calling rendered them familiar with mercantile customs and transactions, and esquires were gentlemen who were likely to be conversant with rural affairs. It was found, however, by experience, that this rule of qualification, when taken as exclusively defining the class of special jurors, was objectionable on several grounds. In the first place, if the terms in question had been construed according to their strict and proper sense, the list of special jurors which they would have supplied would have been quite insufficient for the requirements of the Courts. For the
whole number of bankers, even if every banker had been available for service, would have gone but a very little way towards meeting the consumption of special jurors by even one alone of the Superior Courts of Common Law. “Merchant" could not, without doing violence to its plain meaning, have been held to include underwriters, insurance or colonial brokers, stockbrokers, stockjobbers, accountants, shipowners, warehousemen, and very many others, who would have been most valuable as special jurors. The term clearly and mischievously shut out a large proportion of the men best calculated to do good service as special jurors, and yet was hopelessly vague as a definition. For whom does it include? Formerly it was considered that a merchant was a trader who. imported or exported, and sold by wholesale, only, using samples, and not the actual goods to be taken or supplied, in the negotiation of his bargains, but this course of business is now, in innumerable instances, combined with more or less retail dealing. It would be found much more difficult than anyone who has not made the attempt would be likely to suppose, to draw a line accurately defining what traders nowa days come under the denomination of merchants, and the result of fixing any such boundary, even conceiving that this could be successfully accomplished, would inevitably be to curtail the legal limits of the class to an extent which would render it almost entirely unproductive as a source of supply of special jurors. It appeared by the evidence which was given before the Select Committee of the House of Commons of which Lord Enfield was the chairman, that a very liberal construction indeed was put upon the term, for that, in a multitude of cases, it was taken by the framers of the jury books to cover rag, bone, and potato merchants, as well as the rather more debatable cases of wine, coal, and timber merchants, and it was shown, in fact, that the effect of the employment of a word possessing a meaning of indefinite elasticity was simply to enable the compilers of any special jurors' list to indulge their own taste, favour, or caprice, without any control or limitation whatever.
The designation of “Esquire,” if it had been interpreted as applying to such persons only as were legally entitled to use it, would have reaped but a miserably lean crop of names for the special jurors' list. The members of some professions, as, for example, barristers, and officers in the army, are legally Esquires, but it will be found that most of the callings which confer this title on their members, are such as necessarily come within the list of exemptions from service on juries. Excluding, then, the members of professions who, as such members, are legally Esquires, and taking the rest of the community at large, if men are to be allowed to appraise their own social position for themselves, and their estimate is to be accepted as if it were authoritatively established, the result will not be satisfactory, since it is usually the case that the degree of tenacity with which a man asserts his title to be ranked and addressed as Esquire, is in inverse proportion to the strength of any rightful claim which he may possess to be so designated. The general result of the imperfect definition of the special juror class was that the list was made out on principles which may have been intelligible, perhaps, to the persons by whom it was compiled, but which were wholly inscrutable to the outside public. To give one example of this out of the number which used to be of daily occurrence. It was a source of wonder to me whether a certain pastry cook, a member of the Common Council, who used to serve on special juries in the Court of Common Pleas when sitting at Guildhall, came there in the nominal character of “Banker," or in that of “Merchant," or of “Esquire," the first of these definitions appearing to be scarcely less totally inapplicable to him than the two others. In consequence of the strong evidence given before Lord Enfield's Committee, and in conformity with a recommendation made by that Committee, and by the Judicature Commissioners also, an Act was passed in 1870 by which a rating qualification was added to that of
Banker, Merchant, or Esquire.” Since that date, therefore, the special jurors' list has been made out on a plan