Mistrial

A trial which is erroneous on account of some defect in the persons trying, as if the jury come from the wrong county, or because there was no issue formed, as if no plea be entered, or some other defect of jurisdiction.

3 Cro. 284; 2 Maule & S. 270.

Where a jury is discharged without a ver- Consent of parties cannot help such a trial, when past; Hob. 5. It is error to go to trial without a plea or an issue, in the absence of counsel and without his consent, although an affidavit of defence be filed in we case, containing the substance of a plea, and the court has ordered the case on the list for trial; Ensly v. Wright, 8 Pa. 601. On an indictment for perjury, an infant under the age of twenty-one years, and not otherwise qualified, not having, in fact, been summoned, personated his father as a juror. Here was a mistrial, because the verdict in the case was the verdict of but eleven jurors. “To support a judgment,” observed Justice Holroyd, “it must be founded on a verdict delivered by twelve competent jurors. This man was incompetent, and therefore there has been a mistrial.”

7 D. & R. 684. See 4 B. A Aid. 430; Cancemi v. People, 18 N. Y. 128; New Tmai«