Berry v. Wallin

1 Tenn. 241

Opinion

Overton J.

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, shewing that the jury did not agree during the term, and therefore a mis-trial:

Campbell, J.

The jury ought now to be called, and if they fail to appear, he would then give a further opinion. He agreed that a jury could not he carried from one court to another as in England.

White, J. absent. The court being divided, another jury was called, who returned a verdict.

On motion, the verdict was amended by the court, by adding either “ entry,” or word “ grant,” so as to make it agree with the finding of the jury, who had a few minutes before retired; the court being unanimous, and confident as to their impression of the finding;

* This was strenuously opposed by Whiteside of counsel for the defendants, but the court said they had no doubt of what was said by the jury, and ordered the verdict to be amended.

See 1 Dall. 462. 1 John. 149. 1 Call 246.