
    Soverine De Wit, Appellee, vs. Jefferson Decker, Appellant.
    If, upon the trial of an appeal, a jury is demanded, and there is an objection to the sheriffj the Court of Common Pleas are fully competent to order the coroners to return a jury.
    
      This was an application for a peremptory mandamus, to be directed to the court of Common Pleas of Sussex, and came before this court upon the following state of the case, agreed upon by the counsel of the partios, vix :
    An appeal was taken from the judgment of a justice, rendered upon the verdict of a jury, and it carne on to be tried before the Court of Common Pleas of the county of Sussex, in the term of February, 1826, when the appellee professing himself ready for trial, the counsel for the appellant moved for a trial by jury, and the court ordered the sheriff to return a panel, and thereupon the sheriff returned a panel accordingly, in the. above cause. To this panel tho counsel for the appellant objected, and filed a written challenge to tho array, when it was agreed between the parties, and was otherwise made to appear to the court, that Benjamin Hamilton, Esq., the present sheriff of Sussex, previous to his election to the office of sheriff, had attended before the justice, on the trial of the cause below between tho above parties, and had on such trial assisted the plaintiff, Soverine De Wit, as adviser and advocate in the cause. The court, after argument, quashed the array. The counsel for the appellee then moved the court to order that the coroners of the county do return a panel, to which the counsel for the appellant objected, and after argument, the court refused to order or permit the coroners to return a panel. Upon the above state of the case, it is agreed that application may be made, in behalf of the appellee, to the justices of the Supreme Court of Hew Jersey, at Trenton, at the term of February next, *or tho May term thereafter, for a peremptory man- [*149 dam us to be directed to the Court of Common Pleas of Sussex, commanding them to direct the sheriff of Sussex, or coroners of said county, to return a panel; and in case the said Supreme Court shall be of opinion, that under the facts and law of this case, the said Court of Common Pleas of Sussex ought not to have quashed the array or panel, as before stated, or, after quashing the same, ought to have directed the coroners of Sussex county -to have returned a panel in the above cause, that the Supreme Court may order and direct a peremptory mandamus to the Court of Common Pleas aforesaid, commanding them to direct the sheriff or coroners of Sussex to return a panel in the above cause, or as shall appear to the said Supreme Court to be most correct.
    Wm. Halsey, of Counsel for Appellee.
    
    P. D. Vroom, for Appellant.
    
   By the Court.

"VVe are all of opinion, that the term sheriff, (made use of in the third section of the supplement to the act constituting courts for the trial of small causes, Rev. Laws 797,) means the proper returning officer; and if there is a legal objection to the sheriff, the Court of Common Pleas are fully competent to order the coroners to return a jury. Upon principle, we should hesitate to prescribe, by mandamus, the particular course to be pursued by the Court of Common Pleas, and it is to be understood that we do it in this case only in consequence of the express agreement of the.parties.  