
    Wakeman against Sprague.
    ALBANY,
    Oct. 1827.
    ^ J principal ckaiat the _ circuit dork is attorney for one of paries, the time of hg^nd array• ™g the panel,
    Oh this cause being called at the last Oneida circuit, Williams, 0. Judge, presiding, the defendant interposed a challenge to the array as follows: “ Because he saith that the panel of the jurors drawn and made, and by whom the truth of the matter was to be known between the said Burr Wakeman, plaintiff and the said Ezra Sprague, fendant, was drawn, arrayed and made by John H. Ostram, county clerk of the county of Oneida, from the body of which county, the jury aforesaid come; and that he the said John H. Ostram was, at the time of the drawing of the jury, aforesaid, and at the time of making the panel dforesaid, by him, the said John H. Ostram, and continually from thence hitherto hath been, and still is county clerk of the county of Oneida, aforesaid, to wit, at Utica in said county; and that he, the said John H. Ostram, is the attorney of the said Burr Wakeman, the plaintiff in this same suit, between whom and the said Ezra Sprague, the defendant, the matter in difference is: and that the said John H. Ostram was, on the day and at the place of the drawing of the jurors of the jury aforesaid, and of making and arraying the panel aforesaid, and from thenceforth hitherto continually hath been, and still is the attorney of the said Burr Wakeman against the said Ezra Sprague, in this behalf, to wit, at Utica aforesaid ; and the said John H. Ostram, county clerk of the county of Oneida aforesaid, and the said John H. Ostram, the attorney of the said *Burr Wakeman in this behalf, against the said Ezra Sprague, is one and the identical same person, to wit, at the place aforesaid; all of which the said Ezra Sprague is ready to verify. Wherefore he prayeth judgment; and that the said panel may be quashed.”
    To this challenge, the plaintiff demurred generally. The defendant joined in demurrer; and the circuit judge pronounced the challenge insufficient. The defendant then declined to appear; and an inquest was taken against him by default; damages $2105.
    On these facts, a motion was now made, in behalf of the defendant, to set aside the inquest; and for the motion were cited, Oro. Eliz. 654, case 15 ; 3 Burr. 18-17, 1854; 5 John. 133 ; 9 id. 260 ; Co. Lit. 156, a, and 158; Cowp. 112; 10 John. 107; Archb. P. 181, sect. 2; 1 R. L. 327, s. 8 ; 1 Cowen, 433 ; and id. 436, note.
    It was said, that 1 R. L. 417, s. 10, allowing county clerks to practice in the supreme court, did not alter the common law, so as to give attorneys greater privileges than they had before. Beside, this trial was in the circuit; not in the supreme court. (Constitution, art. 5, sect. 4 and 5. Laws, sess. 46, ch. 182, s. 5.)
    The county clerk has a discretion, as to who shall serve as jurors. (1 R. L. 328, s. 11. Laws, sess. 46, ch. 269, s. 11, Fees of Clerks.) He keeps the official minutes of bis own cause, makes his own certificate, files his own record, Sic. (Laws N. Y. sess. 46, ch. 26, s. 11, as to fees of clerks.)
    
      
      B. Burwell, for the motion.
    
      J. H. Ostram, contra.
   Curia.

It was no doubt well settled, at common law, that the empanelling of a jury by the attorney of either party, was cause of principal challenge to the array. (Baylis v. Lucas, 1 Cowp. 112. Wathins v. Weaver, 10 John. 107.) These were cases of the empanelling and summon ing officer, who was attorney for the party. And under our system of selecting and summoning jurors *in courts of record, by which the sheriff has no legal power of choice, it has been holden a good cause of challenge, that he, (being a party,) summoned the jury. (Woods v. Rowan, 5 John. 133.) He may abuse his power by omitting to summon a part; and this is the ground taken by the court. The power of selection, if he will illegally exert it, therefore, exists to a certain extent. But we perceive hardly a chance to exert such a power, with the clerk. The names of persons qualified to serve on juries are first transmitted to him by town officers. These being written on ballots, and placed in a box, a sufficient number to make the jury for the circuit, are to be publicly drawn by him 14 days before the circuit; previous public notice of 10 days being given as to the time and place of drawing. (1 R. L. 328, 339, 330, sess. 37, ch. 171.) His character of attorney is known to the opposite party, who may attend the drawing. The right of challenge to the array still remains, for any specific abuse by the clerk; (Gardner v. Turner, 9 John. 260; Pringh v. Huse, 1 Cowen, 432;) and a ‘challenge to the polls may be interposed, with time and opportunity to detect and bring forward particular objections. After securing all these advantages, the legislature have themselves provided, that clerks of circuits may practice as attorneys in the supreme court. (1 R. L. 417, 418, s. 10.) It is hardly to be supposed, that, after such labored enactments to secure a general jury for the circuit by lot, the legislature meant to adhere to the old and inconvenient practice of the sheriff empanelling and summoning a particular jury for every cause in which the clerk should happen to be concerned as attorney for either party. Yet such would be v l j the consequence of sanctioning this challenge. They rather seem to have supposed that, so many guards being interp0Se3 against abuse, there could be no danger in uniting the- office of attorney and clerk in this particular instance. Otherwise they would, probably, have forbidden him to act as attorney in the court of which he is clerk, without exception. They have done so of other clerks; and the pro*hibition is still more extensive as to sheriffs and coroners. (1 R. L. 417, 418, s. 10.)

Upon the whole, we think the circuit judge was right in sustaining the demurrer.

Merits are sworn to by the defendant, but we cannot interfere on that ground. The defendant should have gone to trial. This would have waived no right to raise the present objection, on motion or writ of error. The challenge was merely technical. No actual abuse was pretended, or is now. There is no pretence that the party would not have had, in fact, as fair a trial as if the jury had been drawn by a stranger. No substantial excuse for not trying is given.

Motion denied.  