Definition
A procedural device in civil litigation by which one of the twelve impaneled jurors is removed from the jury box by agreement of the parties, rendering the jury incomplete and thereby bringing the trial to a halt without a verdict. Because the jury is no longer constituted as required by law, no further proceedings can occur in that action. The practical effect is a termination of the case mid-trial — something between a dismissal and a mistrial — typically without prejudice to the parties' ability to refile.
The withdrawal requires the consent of both parties and is not a unilateral act. It is not ordered by the court; rather, the judge may recommend it, but the parties must agree to execute it. When done at the court's suggestion in cases where the legal foundation of the action appears doubtful, the convention is that each party bears its own costs.
Common Confusion
Withdrawing a juror is not the same as a mistrial, though both terminate proceedings before a verdict. A mistrial is declared by the court and may be triggered by juror misconduct, deadlock, or procedural error; it operates through judicial authority. Withdrawing a juror is a consensual act of the parties — a negotiated exit from the proceeding. The distinction matters for historical research because older English cases use "withdrawing a juror" where modern practice would simply record a mistrial or a nonsuit. The two concepts also differ in their cost consequences: the cost-splitting convention attached to juror withdrawal does not apply to mistrials as a matter of course.
Withdrawing a juror is also distinct from a nonsuit, though they share the characteristic of terminating an action without a verdict on the merits. A nonsuit is the plaintiff's voluntary withdrawal of the action (or a court-ordered termination for failure of proof); it does not require jury manipulation. Withdrawing a juror was historically used in some jurisdictions as a workaround when a formal nonsuit was unavailable or strategically undesirable.
Why It Matters in Research
This is primarily a term of English common law practice with a historical arc that largely ends before modern American procedure took hold. Researchers encountering it should calibrate accordingly.
First, temporal framing: the device appears with regularity in English civil practice through the nineteenth century. It was recognized and discussed in American treatises of the same era, but American procedural reform — particularly the adoption of the Federal Rules of Civil Procedure in 1938 and parallel state reforms — rendered it largely obsolete as a formal mechanism. When you see the term in American sources, you are almost certainly reading material from before 1900.
Second, cost consequences were not uniform. The historical sources indicate that cost-splitting was the standard consequence when a juror was withdrawn at the judge's recommendation due to uncertainty about the action. But Bouvier signals that this rule "seems now settled" for civil cases — language that itself signals the rule was once contested. Researchers relying on older authorities should not assume uniformity on the cost question.
Third, this term is a signal term. Its appearance in a historical case report or treatise is a reliable indicator that the proceeding terminated without a merits judgment. For purposes of evaluating precedential weight or claim preclusion history, that matters. A case ending in withdrawal of a juror did not produce a binding verdict and, depending on the jurisdiction and era, may or may not have barred a subsequent action.
Fourth, the consensual nature of the device gave it strategic uses that do not map cleanly onto modern equivalents. Parties sometimes used it to exit a case that had gone poorly without the stigma or procedural consequences of a formal nonsuit or directed verdict. Recognizing this strategic dimension helps contextualize why the device appeared in cases where the legal deficiency of the action had become apparent mid-trial.
Historical Dictionary Support
All four source dictionaries agree on the core mechanics: withdrawal requires party agreement, it leaves the jury incomplete, and no further proceedings can follow. The Black's entries (both editions) and Burrill track nearly identical language, suggesting a shared tradition in defining the term. Bouvier adds the useful clarification that the arrangement "usually takes place at the recommendation of the judge, when it is obviously improper the case should proceed any further," and frames the cost rule as settled law in civil matters — a small but meaningful editorial judgment that the other dictionaries do not replicate.
None of the historical dictionaries address the term's relationship to modern procedural concepts, nor do they flag its declining relevance after procedural codification. They also do not address the double jeopardy dimension that arises in criminal contexts, where withdrawing a juror historically triggered different consequences. Researchers should not assume the civil-practice framework described in these sources applies to criminal proceedings without independent verification.
Jurisdictional Note
The device is rooted in English common law and was received into American practice unevenly. It was more consistently recognized in jurisdictions that retained strong common-law procedural traditions through the nineteenth century. Modern American practice does not formally employ the mechanism, and it has no direct statutory analog in federal courts. Researchers in English legal history will find it more operationally relevant than those working in contemporary American law.
Encyclopedia Cross-Reference
No Law Mind Encyclopedia entry directly addresses this term. The matched entries — concerning tax withdrawal penalties, withdrawal of guilty pleas, and withdrawal of medical treatment — are unrelated to this procedural device.