
    Woods against Rowan and Coon.
    If a sheriff^ who is a party in a cause,serves tli& venire, it is good ground of challenge to the array.
    THIS was an action of debt. The declaration was on a penal bond, given by the defendants to the plaintiff, as sheriff of the county of Washington, pursuant to the act relative to gaol liberties. The defendants pleaded a performance of the condition of the bond. The plaintiff replied an escape. The venire was made returnable at the city-hall, of the city of Albany, on the first Monday of August, 1809, and was served by the plaintiff himself, as sheriff. The cause was tried at the Washington circuit, in June, 1809, before Mr. Chief Justice Kent.
    
    The defendant’s counsel challenged the array.
    1. Because the venire had been served by the plaintiff ;■
    2. Because it was made returnable at the city-hall, instead of the capítol in Albany.
    
    Both these objections were overruled by the chief justice. Other evidence was offered, and other objections were made, which it is unnecessary to state, as the opinion of the court was on the first point only.
    The case was submitted to the court, without argument.
   Van Ness, J,

delivered the opinion of the court. If the sheriff no longer possessed the power to select it jury, there certainly could be no objection to his summoning them, in cases where he is himself a party; but I apprehend that the reasons which formerly existed against it, still remain, though I confess their force is considerably diminished.

The reason given for not permitting the sheriff to summon a jury, in his own cause, is because he is not to be trusted to return the jury ; (3 Bl. Com. 354.) and so scrupulous is the law on this subject, that it is a good reason for quashing the array, when made by a person, or officer, of whose partiality there is any reasonable ground of suspicion. (3 Bl. Com. 59.) Under our act,' the opportunity offered the sheriff of selecting the jury, is much more circumscribed than it was before ; but to . a certain extent, he has still the power of choosing the triors of the cause; he has an advantage which the other party has not, and however remote, or unimportant that advantage may be, if it exists at all, the law does not allow him an opportunity of availing himself of it. It is for this reason, among others, that the sheriff is not competent to summon a jury in the great variety of cases mentioned by Lord Coke. (Co. Litt. 156. a.) It is true that the sheriff no longer selects the whole panel, and that it now is his duty to summon all such persons as shall have been previously balloted by the clerk; and hence it is argued, that the challenge to the array in this case, was properly overruled. I cannot accede to this conclusion. The sheriff certainly may select such of them as he may suppose will best subserve his purpose, and by summoning them, and omitting to summon the rest, he may in many cases as effectually pack a jury, as if he had the power of selecting the whole panel. The impartial an(l equal administration of justice, renders it dangerous to trust the sheriff with such a power. It is no answer to this objection, to say, that it is not to be presumed the sheriff will prostitute his office to such purposes. It is because he may do it, that the law interposes ; and if he may, that is decisive of the question. I have taken some pains to ascertain, whether in England, it has ever been considered that it was not a good ground of challenge to the array, where the sheriff has summoned a special yuxy, he being a party, or otherwise disqualified. As far as my researches have extended, I do not discover that there is any distinction; the rule appears to be universal; and yet where a special jury is to try the cause, the sheriff has bo more power of selecting the jury, than he has under our statute. I am satisfied that it is safest to adhere to . the rule as we find it settled; a rule wisely mtroduced for the purpose of guarding against partiality and corruption, in trials by jury. The court are of opinion, that the challenge to the array upon the trial, ought to have been allowed ; and that there must therefore be a new trial with costs to abide the event of the suit.

New trial granted.  