Berry v. Wallin and Baily

1 Tenn. 240

Opinions

A jury had been impanelled and sworn at the last term, to try some issues of fact. They could not agree, nor would the parties consent to a mistrial, so that the jury continued until the end of the term without agreeing, nor was any verdict returned. Upon the suit being called at this term, it was insisted by the defendants' counsel that the jury must appear by the record to hare been disposed of. From the record it appeared that a jury had been sworn, and nothing more. In England a jury would be carried in a cart from one court to another until they did agree. It is believed that, whatever power a judge might possess in England in carrying a jury from one Nisi Prius court to another, a judge has no such power here. Whilst the Court is sitting, the jury are under the direction of the Court; after the end of a term, by our law, the verdict of a jury could not be received; why then keep them together — it were useless? A dissolution of the Court by the ending of the term would bring with it that of a jury; their official capacity being at an end with the term, they might disperse as other individuals. If it be thought necessary, a special entry may be made, showing that the jury did not agree during the term, and therefore a mistrial.