knew who the man was in regard to sistent with his being George W. Southwhom they were to exercise their judg-wick. Knowing, or being informed as to ment of approval or disapproval, we the individual whom the name representmight proceed and be sure that the indi-ed, counsel might say, we will accept that vidual selected was known, though he man whom the name indicates though he was given a wrong name. But no such is Mr. Schultz's partner. They are not conversation is shown to have taken told by any words which negative the explace, and I am asked to say that I can pression of the choice, as indicated by surely, with correctness, draw the conclu- the list before them, that Mr. George sion that they knew the individual select- W. Southwick is not the man chosen, ed, because certain things were spoken in but are simply told of his business contheir hearing which would indicate that nection and occupation. The written the written name was not the choice of name and the spoken words do not necthe elisors. The uncertainty of such a essarily conflict, and I cannot say that, conclusion being right is most manifest. in exercising the choice of exclusion, the The stenographer, Mr. Underhill, counsel for defendant acted upon the who undertook to take notes of all knowledge that George W. Southwick that was said, testified that, owing to the was in fact John C. Southwick, confusion in the room, he could not say A careful reading of the statutes (2 Edhe had recorded all. If he did not monds' Statutes, p. 435), however, will hear every word, can I be sure coun- show that no resort can be had to extrinsel did? And can I be so sure, in view sic evidence to prove what persons are of the positive affidavits submitted by selected. There must, of course, be the defendant's counsel, that they did not mental operation of the elisors in solution, understand the Mr. Southwick selected and the indication to the parties of the rewas the partner of Mr. Schultz? But sult of such mental operation, and the suppose the remark as to the juror, that mode of such indication is the written he was the business partner of Mr. names. By the 48th section, from the Schultz, was heard, on again looking at original jury list returned to the Clerk, the the name and the consultation of a direc-elisors were to choose "the names of fortytory they conclude that the elisor is mis- eight persons whom they shall deem most taken as to the man, and that he is not indifferent between the parties and the the partner of Mr. Schultz, but on the con- best qualified to try the cause." By sub-ditrary a very different individual, when the vision two of same section, it is further dewritten information is one way and the clared that the party applying for the verbal the other, what is the party to do? struck jury "shall then first strike out Can he do otherwise than rest upon the one of the said names, and the opposite written evidence before him? and if he party or his agent shall strike out anothdoes, and the Court now holds that he er of such names; so alternately, until erred, and should have taken the uttered each party shall have stricken out twelve descriptive words rather than the writing, names." The third sub-division of the has not the party been misled to his pre- section provides that, if either party fails judice by the contradictory statements of to appear, "or shall neglect to strike out the Court's own officers? Or suppose any names according to the foregoing again, that the elisors did distinctly say, provisions," the Clerk shall strike for and were distinctly understood as saying, such party. The fourth sub-division of that the Mr. Southwick upon their list the same section provides for making a list was the business partner of Mr. Schultz, of "the names of the twenty-four persons and a leather merchant in "the swamp," not stricken out," and a certificate that such information is not necessarily incon- they compose the persons drawn to serve as jurors, and the delivery thereof to the as George W. Southwick, and John C. Sheriff. The forty-ninth section pro- Southwick had been accepted by all as vides: "The Sheriff shall summon the being the former, and had acted and persons whose names are contained served without objection under the name in the list so delivered to him by the of George W., there would be no difficulty. Clerk, in the same manner as other ju- There being no objection at the proper rors are required to be summoned, and time it would be waived. But we have shall return the names of those summoned a George W. Southwick as well as a John to the court at which they are required C. Southwick, and I am asked to say upto appear as jurors." on evidence that the elisors intended the latter, and not the former, and that such intention was known to the counsel of the defendant, when they exercised their choice of selection as to names being To my mind the language of the statute is conclusive; the evidence of the choice of the elisors is the written name, and the thought is expressed in every section. It is really the only practical mode of do-stricken out; and to find that they did ing so. so understand it, when on oath they aver The written name may be explained to the contrary. I have already alluded away, and what safety has a party? In to the danger of so finding upon the evithis particular instance, from the charac-dence before me, but the difficulty is ter of the elisors, we entertain no doubt greater than that. The statute makes as to the absolute truth of their state- the evidence of the choice, and the indiment, but the precedent, if made, will be a most dangerous one for the future. The case of Ganson v. The City of Buffalo (1 Keyes, 454) is not the one with which I have to deal. Commissioners had been appointed to appraise lands required for city use. "The original order named Joseph G. Hoyt as one of the commissioners. Under that order James G. Hoyt took the oath of office prescribed for the commissioners, and acted as such, and made and signed the report, which was confirmed. It is clear that he was the person intended, and who acted, and who was, in fact, the person appointed. There is no evidence in the case that there was any such person as Joseph G. Hoyt, and it appearing to the court, who made the order appointing the commissioners, that the writing of the word Joseph in place of James was a clerical error made by the clerk thereof, and that James G. Hoyt was the person actually appointed, it was competent for the court to amend the order in accordance with the facts." I have given the language of Judge Davis in that case to show the ground on which it was put, and its inapplicability here. If there was no such person cation thereof to the parties, the written name. That is the record evidence, and were verbal classifications, altering or qualifying it, allowed, there would be endless confusion and trouble as well as great danger of fraud and mistake. Neither can the offer of counsel for plaintiffs to peremptorily challenge John C. Southwick, if defendant's counsel so desire, help the motion. The effect of that would be to abridge the panel by one name, when the statute contemplates twenty-four from which to choose the twelve. The effect of granting the motion to amend because of the tendered stipulation to challenge John C. Southwick, is equivalent to compelling the defendant to accept twenty-three names instead of the statute number of twenty-four, from which the jury to try the cause is to be chosen. The statement of the proposition is the best answer to be made. In denying this application of the counsel of the plaintiff's, no possible imputation is made upon their skill, learning and law. They are in no wise responsible for the error. They had a right to assume that the elisors had selected every name from the general jury list as they were ordered to do; and they certainly challenge presented by the counsel of the could not know that the elisors meant, defendant will be considered in the order in the case of one individual, some of their presentation. other person than the one who was indicated by the name which they themselves wrote. N. Y. SUPREME COURT. CIRCUIT, PART 2. The People of the State of New York, V. Tweed.-Cause No. 2. First. It is objected that the various lists of jurors returned to the clerk's office of the county were imperfect, because the Commissioner of Jurors had not, when this jury was selected, made lists of jurors whom he had adjudged competent and liable to serve, as he was required to do by Chap. 495 of the Laws of 1847. This ground of challenge was fully examined by me in the attempt to obtain a jury for the trial of the former action, and was then found to be insufficient. To the opinion then pronounced reference is made for the reasons which induced me to hold it invalid. Subsequent reflection has only confirmed the conclusions then reached-that the Act That the elisors put, in another cause be- providing for a struck jury requires the tween the same parties, certain names selection of forty-eight names from these on the panel which had been stricken, lists, and when that has been done the by the parties, from the list in a former law is complied with; that the laws procause, is neither ground for a challenge viding for the selection and return to the to the array, nor to the individuals clerk's office of the names of persons qualThe jury will not be discharged because ified to serve as jurors have been repeatone of the twenty-four names, is that of edly held, (see, among other cases, Peoa person who is exempt, when his name ple v. Friery, 2 Abbott's Court of Appeals' was found on the jury lists when they were prepared, and afterwards became exempt. themselves. cases, 227; People v. Ransom, 7 Wendell, 424), to be directory and not mandatory; and that if such laws require a perfect list of jurors to be made and returned to the clerk's office, they would then defeat all trials, as such a list, in the very nature of things is impossible. That the name of a person who is domiciled out of the county is upon the panel returned, is not a ground to set aside the whole panel. If his name is on the jury lists he can be put on the panel, and any disqualification can be availed of when he is called. Second. It is urged that the panel A person may have two residences, though should be quashed because the elisors but one domicile, and when it appears have placed upon the list of names sunthat he has resided, for the greater part of the time, from the first day of Octo- dry individuals who had been stricken, ber to the thirtieth day of June for sev- some by the plaintiff and others by the esal years in a certain place, he is by defendant, from the list made by them the Statute liable as a juror there. in the first cause. To the elisors was A juror was on the general list correctly committed (2 Edmonds' Statutes, p. 435, written "J. C. Jr.," and on the struck Sec. 48) the right to judge. They are rejury "J. W. C." This was not materuul, for the law recognizes but one quired to select from the general jury Christian name, and the word junior is lists filed in the clerk's office such names in law no part of a name. as they "shall deem most indifferent between the parties, and best qualified to try such cause." The right of selection Westbrook, J.-The various objections which have been stated in support of the being confided to them, and the conces- being hardly possible to suppose that sion being made, as it is, that these gen- among over six thousand competent tlemen were honest in its exercise, I names to-day they would all be compeknow of no mode, so long as the law does tent to-morrow, or next week, there would not forbid the act, by which the whole never be a struck jury. The section, it panel can be set aside for a mistake seems to me, simply means that the of judgment in regard to several of the selection of the forty-eight names shall be individuals selected. A challenge to the from among those whom "the original array can only be maintained on the list of the jurors returned to him" shall ground of partiality or bias in the officers show "are then liable to serve." If it choosing them, or for such a departure means anything more, the law is impossifrom the letter of the statute as will nul-ble to execute, and no construction aclify the whole choice. If men who ought complishing such a result should prevail, not to sit as jurors in the cause are se- when another, capable of being fairly lected, the objection to each must be made, will give to it efficacy and life. made when called, and errors of judgment, if there be such, may then be corrected. It may not be improper further to observe that a juror may be incompetent to try one issue between parties, and yet perfectly competent to try another, and that a mere objection to an individual in one case from serving as a juror is not necessarily one to the same person when called to act as a juror in another action between the same parties, for the issues may be radically different, and the personal dislike on one day may vanish when some days elapse between the selections, as they have, in fact, intervened in the present instance. Fourth. The facts that William P. Douglass, whose name is also upon the panel returned, has a domicile in the County of Queens, votes there, and has done jury duty there, are urged as showing him to be not liable to serve as a juror in this county. The name of Mr. Douglass was upon the list returned to the Clerk's office, and as it was taken therefrom in obedience to the mandate of the Struck Jury Act, this objection cannot set aside the entire panel. It may be ground of objection to him when called, or an excuse to be presented by himself, but his right to be excused cannot render the entire selection a nullity. Third. It is claimed that the whole But there is another answer to this objury should be discharged, because, jection. An individual may have two among the twenty-four names is one- residences, though he can have but a sinJohn H. Caswell-who, on the twenty-gle domicile. Queens County is the ninth day of October, 1875, was exempted by the Commissioner of Jurors from jury duty. This act of the Commissioner, however, was, subsequent to the making and filing of the list of jurors in the Clerk's office, upon which he was returned as, and adjudged to be liable to serve as a juror. As the name was upon the list of jurors from which the selection was to be made, I do not see how this objection can prevail. The true construction Fifth. The list of jurors selected to of section 48 (2 Edmond's Statutes, p. try this cause has, and the original one of 435), does not require, in my judgment, forty-eight names had, one written Julius the list of the jurors who are then liable W. Catlin, whereas the name upon the to serve to be accurate, for if it did, it general jury list is correctly written domicile of Mr. Douglass, and he resides there, but he also resides in the City of New York, and as he expressly swears that "for the greater part of the time between the first day of October and thirtieth day of June thereafter" he has, for several years, resided in the City of New York, by the express terms of section 4 of chapter 539 of the Laws of 1870, he becomes liable to serve as a juror here. Julius Catlin, Jr., and this discrepancy best consideration, and the views exin the name is urged as fatal to the pressed are the results of my best judgpanel. It is true that upon the former ment. The challenge to the array of challenge, when it appeared that there jurors is for the reasons given overruled. were two individuals bearing the name of Southwick, one of them was truly called George W. and the other John C. Southwick, I held that the written name was the only evidence by which the person selected could be known, and to that decision I adhere; but there is only one Catlin, whose Christian name is Julius, and I am asked to hold that, because he was erroneously given a middle letter (W.) when he had none, and the description of "Jr." was omitted, that the individual was not properly designated. SURROGATE.-EXECUTORS AND N. Y. COURT OF APPEALS. Roderigas, admtrx., etc., respt. v. The The Surrogate has the power, and it is Letters of administration are conclusive evidence of the authority of the administrator, and a payment to him is protected, though the alleged decedent was alive. made in 1857. It will also be remembered that there is no claim now made, as there was in the former case, that the party was in anywise misled. He does not urge that he did not know the man as well by the name as written as he would have known him if it had been written with the "W." omitted and the "Jr." added. This was an action to recover a deposit As the law is well settled in cases so nu-made by James Devine, (plaintiff's intesmerous as to make their citation un- tate), with defendant. The deposit was necessary, that there is only one Christian name recognized, and the giving wrongly, or the failure to give a second, is no error; and that the word "junior" is no part of a name, and its addition or absence no misnomer. I do not see that I can hold that any error has been committed. If there were two persons bearing the name of Catlin, one known as Julius Catlin, Jr., and the other as Julius W. Catlin, and the party claimed he had been misled, the case might be. different. As there is only one Julius Catlin, and he has been summoned and attends, and as the parties knew him when the right of exclusion was exercised, despite the addition to the name of the 'W.," and the omission of the "Junior," I fail to see how this point can prevail. 66 I have endeavored to give the questions received, and which counsel had both a moral and legal right to make, my Devine soon thereafter In 1869, he not having went to Cuba. returned to New York, letters of administration was issued upon his estate on the application of one claiming to be a creditor, and on sufficient formal proof that he had died intestate, leaving assets. The proceedings were in regular and full compliance with the Statutes. The administrator appointed applied to defendant and received the deposits. It appeared that Devine did not die until 1871. In May, 1872, his wife, the present plaintiff, returned from Cuba, and upon her application the former letters were revoked, and letters of administration issued to her, and upon demand and refusal she brought this action. Held. That under the provisions of the Revised Statutes (2 R. S. 74, secs. 23, 26), the Surrogate had power, and it was his duty to issue letters, upon due proof being made to his satisfaction of |