Wolcott a. Winston.

the promise of the defendant to pay the amount of these notes is shown. It is said they are notes indorsed for the defendant by the plaintiff, but whose hotes is not stated, or how indorsed, or why, for the defendant. In Boyden a. Johnson (cited supra), STRONG, J., said: "The statement in question (in that case), so far as it relates to future sales, is objectionable, not only on account of its indefiniteness, but as no fact is stated showing any obligation to sell any goods at any future period. If a judgment by confession can be allowed to have any future indebtedness, it should be particularly specified, and it should be called for by some existing liability. The Code is explicit, that when the object is to secure the plaintiff against a contingent liability, there must be a statement of the facts constituting the liability.

In the present case there is no statement of any facts showing the liability of this plaintiff to the defendant to pay these several notes, or any fact stated showing the liability of the defendant to repay the same to plaintiff. For aught that appears in these statements, the liability of the plaintiff may have been incurred for some other person than the defendant. I have no doubt that the statements are defective, and the order appealed from, holding them sufficient. is erroneous, and should be reversed.

WOLCOTT a. WINSTON.

Supreme Court, First District; Special Term, March, 1859.

VERIFICATION.

The defendant is not excused from verifying his answer to a sworn complaint, on the ground that the complaint charges him with fraud in the making of the assignment which it is the object of the action to have set aside.

The action was brought to set aside an assignment as fraudu lent. The complaint averred that, some five years ago, the defendants failed, and made an assignment of their property, representing that it would be sufficient to pay all their debts, instead of which the assigned property had never yet produced any

Nesmith a. The Atlantic Insurance Company.

thing; and charged that the assignment was fraudulently made. The complaint was duly verified; but the defendants served an unverified answer, claiming that the averments of the complaint amount to a criminal charge, in respect to which they would be excused from testifying.

Buckham, Smales & Green, for the plaintiffs.

Tracy, Wait & Olmstead, for the defendants.

ROOSEVELT, J.-The defendants, I think, were bound to verify their answer. The matter of the complaint involved no charge of felony. And even if it might be construed, as I think it could not, into a criminal misdemeanor, yet as the Code (§ 157) provides that no pleading in a civil suit can be used in any criminal prosecution as proof against the party, the defendants would incur no risk, if their statements were true, in swearing to them. Their oath could only be used in this action. And 2 Revised Statutes (§ 405) provides that a witness shall not be excused from answering on the ground merely that his answer may subject him to a debt or civil suit. The act of 1854, therefore, which gives the defendants the privilege of witnesses, does not exempt them from the obligation to verify their pleading.

The answer objected to must be stricken out (and judgment rendered for plaintiffs), unless it be duly verified, or another in its stead, in ten days from the service of this order.

NESMITH a. THE ATLANTIC INSURANCE COMPANY.

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

SPECIAL JURY.

Reasons why a special jury should not be ordered in the city of New York.

Motion for a special jury.

This action was one of thirteen suits brought by the plaintiff,

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