Nesmith a. The Atlantic Insurance Company.

as assignor of one Achorn, upon as many insurance policies, issued by various companies, upon the ship Achorn. The vessel was destroyed by fire. The defence was, that the fire was set by the procurement of Achorn. After a very protracted trial, the plaintiff had a verdict, which was afterwards set aside on the ground of misbehavior of the jury, and a new trial ordered. Upon the second trial the jury disagreed.

The plaintiff now moved for a special jury. (2 Rev. Stats., 514.)

F. B. Cutting and Gilbert Dean, for the plaintiff.

E. W. Stoughton, for the defendant.

PIERREPONT, J.-The statute provides for a special jury, to be ordered by the court when it shall appear "that a fair and impartial trial will be more likely to be obtained by having a struck jury, or that the importance or intricacy of the cause requires such a jury."

The statute then provides the mode of selecting such jury. A careful reading of the statute, and some considerations of its operations will, I think, convince any one familiar with this city that a fair and impartial trial will be less likely to be obtained by a struck jury. Only twenty-four jurors can be summoned; how many can be found, how many can attend, how many will have good excuse, is uncertain. But from past experience it is not likely that more than fifteen out of the twenty-four would be able to attend. There is no means of ascertaining their views beforehand, and the range would be so exceedingly limited that, in my judgment, an impartial trial would be much less likely than in the ordinary way.

The court will allow every juror to be tried on oath before he takes his seat; there is the entire panel from which to select, and each juror's partialities, if he has them, can be fairly discovered, and the juror, if unfit, will be excluded from the sitting.

The motion must be denied, without costs.

Andrews a. Wallege.

ANDREWS a. WALLEGE.

Supreme Court, First District; General Term, May, 1859.

JURISDICTION OF SURROGATE.-TRIAL OF CLAIM DISPUTED BY EXECUTOR OR ADMINISTRATOR.—AUTHORITY OF PRECEDENT.

The surrogate has not jurisdiction to try, on petition of a creditor, a claim against the estate, which is disputed by the executor or administrator.

Of the binding effect of decisions of the Supreme Court, at general term in one judicial district, upon the court at general term in other districts.

Appeal from an order of the surrogate.

BY THE COURT.-INGRAHAM, J.-The question submitted to us on this appeal is, whether the surrogate has jurisdiction, on the petition of a creditor, to try the validity of his claim when disputed by the executor or administrator. The surrogate in this case assumed to do so, and decided against the administrator, who now appeals to this court.

It must be conceded that there is no express authority in the statutes authorizing such a trial. There are cases where the surrogate has limited powers to make the investigation as to disputed claims, but none of those cases extends to a case like the present. In 3 Revised Statutes (5th ed.), 188-9, §§ 13, 16, such power is given to the surrogate; but that is a case where the executor or administrator applies for leave to sell real estate to pay debts, and where, of course, he admits the debt to be valid. In such a case the heir or devisee is permitted to deny the validity of the claim to show that the real estate should not be sold, and the surrogate's decision only applies to that question.

In 3 Revised Statutes, 182, § 78, a like power is given after a final accounting, to settle as to the claims of creditors, legatees, &c.; but it may well be doubted whether such authority even there is given to try the validity of a claim which is totally rejected by the executor.

In 3 Revised Statutes, 175, the provisions for reference of disputed claims show that the Legislature did not intend to

Andrews a. Wallege.

place the trial of them under the control of the surrogate; for in such cases the statute requires the agreement to refer to be filed in a law court, and the proceedings thereon to proceed to judgment in that court, before the surrogate can act in directing its payment.

The case of Fitzpatrick a. Brady (6 Hill, 531), relied upon by the respondent, merely holds that the proceeding before the surrogate, on petition of a creditor, to anticipate payment of a claim before eighteen months had expired after letters-testamentary, necessarily involved an examination as to the validity of the claim, for the purpose of deciding as to the propriety of granting the order asked for; but the same case holds that such examination was not binding upon the parties, and only concluded the creditor as to his application to anticipate the payments, leaving him to his action at law to enforce the debt, if disputed by the executor or administrator.

The case of Kidd a. Chapman (2 Barb. Ch. R., 414) was upon a judgment against the testator, and the decision in that case has been considered as not based on a reference to the statutes above referred to. In Wetson a. Baptist Ed. Society (10 Barb., 308), the correctness of that case is doubted, and Justice Brown then held that the surrogate had no authority to take cognizance of a disputed claim on the application of the creditor.

In Magee a. Vedder (6 Barb., 353), the general term at Albany held expressly that the surrogate had no power to decide upon the validity of a claim against an estate when such claim is disputed by the executor. The full examination of the question in that case by Mr. Justice Harris seems to render any further discussion at this time unnecessary.

In Disosway a. The Bank of Washington (24 Barb., 60), the same doctrine was held by the Monroe general term, and the court there say that the provisions of the statute only apply to undisputed claims, and that the Legislature intended that the power to adjudicate upon the validity of a debt claimed against the estate of a testator should remain exclusively with the courts of law and equity, where it appropriately belongs.

With these decisions we concur; but even if we doubted the correctness of either of them, we think that two successive decisions of general terms concurring on the same point, in dif

Doty a. The Michigan Central Railroad Company.

ferent parts of the State, should be treated by us as authority until reversed by a higher tribunal.

It is a co-ordinate branch of the same court, and uniformity of decisions throughout the State is so desirable as to call for respect by the general terms in the different districts for the decisions of each other, unless in some special case and for special reasons a court might feel compelled to depart therefrom. The order appealed from should be reversed.

DOTY a. THE MICHIGAN CENTRAL RAILROAD

COMPANY.

New York Superior Court; Special Term, May, 1859.

SERVICE OF SUMMONS.-MANAGING AGENT OF CORPORATION.

A foreign railroad corporation having their whole road and traffic without the limits of this State, and having no office here, are not a corporation doing business within this State, although tickets for passage over their road are sold by their agent here.

One who merely sells tickets for them in such case, is not to be deemed a managing agent upon whom service of process may be made.

Motion to set aside judgment.

In this action judgment had been entered by default on affidavit of service of summons and complaint on one Clark, of this city, on 9th February, 1850.

This judgment the defendant now moved to set aside.

It was shown by affidavit that defendants were a foreign corporation (of the State of Michigan). The plaintiff was a resident of this State. It did not appear that the defendants had any property in this State, nor that the cause of action arose in this State. It was expressly sworn that defendants were not and have not been for a year past doing business in this State; that their sole business was and had been the transportation of freight and passengers between points without this State, and

Doty a. The Michigan Central Railroad Company.

the building and maintenance of its track, no part of which lay within this State.

Mr. Clark testified unqualifiedly that he was not, nor ever had been, the president or other head of the corporation, or its secretary, cashier, or treasurer, or a director or managing agent thereof.

The plaintiff, on the other hand, swore that he was acquainted with Clark, and knew him to be the agent of the defendants in this city; that Clark received and paid out money for defendants; that his name was printed as agent of defendants upon the tickets and circulars issued by them in this city, and that, after diligent inquiry, he could find no other representative of the defendants in this city.

The plaintiff's attorney also swore that he had received a letter from the deputy secretary of state, stating that defendants had failed to comply with the law requiring them to designate a person within the State on whom process may be served under the act of 1855.

E. W. & G. F. Chester, for the motion.

S. Whitehouse, opposed.

WOODRUFF, J.-The defendants are not, in my opinion, doing business within the State and county within the meaning of the act (Laws of 1855, 470), and the person on whom the summons was served, not being president or other head, nor secretary, treasurer, cashier, director, or managing agent of the corporation, within the provisions of the Code, section 134, nor appearing to have property therein, and it not appearing that the cause of action arose in this State; there has been no such service of summons and complaint as warranted the entry of any judg ment against the defendants in this court.

The judgment must, therefore, be set aside, with $7 costs.

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