¶1The writ of inquiry is superseded by the Code of Procedure, which directs, where the action does not arise upon contract for the recovery of money only, and the defendant fails to answer, that the court, upon application for judgment, if damages *395for any tort are sought to be recovered, may order them to be assessed by a jury. Whether this includes a sheriff’s jury, it is, perhaps, not necessary on this occasion to inquire. -It is quite certain that the court retains the power to have the damages assessed at the circuit.
¶2I am not at all afraid that the political predilections of the sheriff would, as has been hinted, consciously or unconsciously bias his conduct in assessing the damages before a jury of his own; but, for other reasons, I think it is expedient that the cause should be sent to the circuit. The occurrence upon which the action is founded has produced, I am informed, some excitement in political circles; and it is very probable the question, to what extent provocation may be admitted in mitigation of damages, may arise on the trial. Under such circumstances, both parties should have the benefit of all the advantages which a regular trial at the circuit can afford; and one of the most important in a case of this nature is, that they both should have the right of challenge. The persons comprising a sheriff’s jury cannot be challenged. The reasons assigned in the books are, because an ^assessment by a sheriff’s jury is only an inquest of office, and the sheriff does not act in a judicial capacity. (2 Johns., 91.)
¶3Motion granted, with $10 costs, to abide event.