WITHDRAWING A JUROR. An agree ment made between the parties in a Suit to require one of the twelve jurors impanelled to try a cause to leave the jurybox ; the act of leaving the box by such a juror is also called the withdrawing a juror.
This arrangement usually takes place at the recommendation of the judge, when it is obviously improper the case should pro ceed any further. And it seems now set tled that in civil cases the court has power to do this, in the exercise of a sound discre tion, without the consent of the parties, in stead of nonsuiting the plaintiff ; People v. Judges of New York, 8 Cow. (N. Y.) 127.
A refusal under the special circumstances was held error in McKahan v. R. Co., 223 Pa. 1, 72 Atl. 251, 16 Ann. Cas. 173.
The effect of withdrawing a juror puts an end to that particular trial, and each party must pay his own costs ; 3 Term 657 ; 1 Cr. M. & R. 64. In Pennsylvania, the costs abide the event of the suit; Tr. & H. Pr. § 689. But the plaintiff may bring a new suit for the same cause of action ; Ry. & M. 402 ; 3 B. & Ad. 349. See 3 Chitty, Pr. 917.
In American practice, however, the same cause goes over, or is continued, without im pairing the rights of either party, until the next term.
It is usually a mere method of continuing a case, for some good reason. Most of the cases hold that It is the proper practice when it is necessary to prevent the defeat of jus tice, and that it may be done by the consent of the parties in a civil case.
The cases are collected in a note in 48 L. R. A. 432. It was held in the case there reported that the practice does not obtain in Oregon. There, however, the request appears to have been made immediately after a mo tion to continue for the absence of material evidence had been refused. In Glendenning
v. Canary, 64 N. Y. 636, it was held the prop er practice where any accident or misappre hension or disappointment would render a trial unjust. It is said to be proper in crim inal cases, though without defendant's con sent ; State v. Weaver, 35 N. C. 203; U. S. v. Morris, 1 Curt 23, Fed. Casa No. 15,815 ; con tra, in a capital case; State v. Ephraim, 19 N. C. 162; a felony ; 2 Stra. 984. But see JEOPARDY.
In the federal court (Illinois) where, at the conclusion of plaintiff's testimony, the court would, if a verdict were rendered for him, set the same aside, and a motion is made by defendant to direct a verdict for him, plaintiff is not allowed to take a nonsuit, but may withdraw a juror and discontinue; Wol cott v.' Studebaker, 34 Fed. 8.
Where the plaintiff, at the suggestion of the judge, withdraws a juror, with the under standing of bringing the matter to a final con clusion, it amounts to an undertaking not to bring an action for the same cause ; and if a second action be commenced, the court will stay the proceedings as against good faith : 1 Chit. Arch. Pr. 285. It is held that, if a juror is withdrawn, no future action lies for the same cause of action ; 14 M. & G. 808.
If, after a prisoner has pleaded to an in dictment, and after the jury have been sworn and evidence offered, the public prosecutor, without the consent of the prisoner, withdraw a juror merely because he is unprepared with his evidence, the prisoner cannot afterwards be tried on the same indictment; People v.
Barrett, 2 Caines (N. Y.) 304, 2 Am. Dec. 239 ; Arch. Cr. Pr. & Pl. 347.