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ment if plaintiff ought to have its aforesaid maintain its action if it shall hereafter qualiaction against it,' etc. Appellee filed fy to transact business in this state. similiter to the general issue and demurred In the case of Cincinnati Mutual Health to the special plea. The court overruled the Assurance Co. v. Rosenthal, 55 Ill. 85, 8 Am. demurrer. Appellant elected to stand by Rep. 626, a similar question arose, the foreign the demurrer. Thereupon the court ordered, corporation there being an insurance com'therefore it is considered by the court that pany which had brought suit in this state defendant go hence without day and that upon a note given to it for stock in the corplaintiff takes nothing by the aforesaid ac poration and for premium on a policy of intion,' and entered a judgment for costs surance. It appeared that the contract in against appellant. The case is brought to pursuance of which the note was given was this court by appeal. Appellant assigns as entered into and the note executed and deerror the action of the trial court in over livered in this state when the plaintiff was ruling its demurrer and entering judgment not authorized to transact business in this in bar of its cause of action."

state, for the reason that it had not com

plied with the laws of the state in reference Charles H. Blatchford (Ralph M. Shaw,

to foreign insurance companies. Its lack of of counsel), for appellant. Albert N. & Edw.

authority to conduct its affairs in this state S. Eastman, for appellee.

was interposed in bar of the action, and

the court, after pointing out that the statute SCOTT, C. J. (after stating the facts). expressly prohibited such a company from Section 67b, C. 32, Hurd's Rev. St. 1903, effecting insurance or transacting business provides that no foreign corporation organ in this state until after it should have comized for pecuniary profit shall be authorized plied with the statute in reference thereto, or permitted to transact business in this state, used this language: “When the Legislature or to continue business herein if already es prohibits an act or declares that it shall be tablished, until it shall designate some per unlawful to perform it, every rule of interson as its agent or representative in this pretation must say that the Legislature instate on whom service of legal process may tended to interpose its power to prevent the be had. Section 670 of the same chapter act, and, as one of the means of its prevenprovides a punishment for any neglect or tion, that the courts shall hold it void. This failure to comply with the act, and con is as manifest as if the statute had declared tains this further language: “In addition to that it should be void.” This case has been which penalty, on and after the going into cited with approval on a similar proposition effect of this act no foreign corporation, as in Penn v. Bornman, 102 Ill. 523, and Illiabove defined, which shall fail to comply nois State Trust Co. v. St. Louis, Iron Moun. with this act, can maintain any suit, or ac tain & Southern Railway Co., 208 Ill. 419, tion, either legal or equitable, in any of 70 N. E. 357. the courts of this state upon any demand, The contract upon which this suit was whether arising out of contract or tort.” brought, having been entered into in this The two sections above referred to are parts state when appellant was not permitted to of an act which became effective on July 1, transact business in this state, is in viola1899. Laws 1899, p. 118.

tion of the plain provisions of the statute, According to the averments of this plea, and is therefore null and void, and no action appellant transacted the business in question can be maintained thereon at any time, even in this state at a time when it was forbid if the corporation should at some time after den by our laws so to do, and it was not the making of the contract qualify itself permitted by our laws to maintain any suit, to transact business in this state by a comeither legal or equitable, in any of the courts pliance with our laws in reference to foreign of this state when this suit was instituted. corporations that desire to engage in business Appellant's contention is, that its right to here. bring this action is not barred by these stat The judgment of the Appellate Court will utes; that they merely abate this suit, leav be affirmed. ing to the foreign corporation the right to Judgment affirmed.

(186 N. Y. 4)

reversing the judgment, the people appeal. PEOPLE V. DOLAN.

Judgment of the Appellate Division reversed,

and judgment of conviction affirmed. (Court of Appeals of New York. Oct. 2, 1906.) 1.. CRIMINAL LAW – FORGERY -- EVIDENCE OF

Wm. Travers Jerome, Dist. Atty. (Robert OTHER FORGERIES-ADMISSIBILITY.

C. Taylor, of counsel), for the People. Alfred On a trial for uttering a forged note by R. Page, for respondent. indorsing it to a bank, evidence of the forgery and uttering of other notes by accused, made payable to him, and negotiated with other banks and WERNER, J. The defendant was indicted individuals, was admissible as showing guilty by the grand jury of New York county for knowledge, especially where all the notes were

the crime of forgery in the second degree. made at about the same time and during the

The time accused was endeavoring to raise funds

The indictment contained two counts. to meet his obligations, and where in each case first count charged him with forging a note he used the names of persons with whom he had dated October 13, 1897, for $2,000, payable to done business and with whose affairs he was familiar.

the order of himself at the West Side Bank, [Ed. Note. For cases in point, see vol. 14,

and purporting to be signed by the firm of Cent. Dig. Criminal Law, $$ 833, 834.]

Thos. Cockerill & Son. The second count 2. SAME-EVIDENCE-SECONDARY EVIDENCE charged him with feloniously uttering the

ADMISSIBILITY-SUFFICIENCY OF FOUNDA same forged instrument with intent to deTION.

fraud, knowing it to be forged. The first On a trial for uttering a forged note, the prosecution served notice on accused to produce

count was abandoned at the trial and the deother notes alleged to be forgeries, but he failed fendant was tried and convicted on May 19, to do so. Some of the notes were traced direct 1904, upon the second count. There was amly into the hands of accused. while in case of ple evidence to warrant the jury in finding notes indorsed to banks the officers of the banks testified that they had been returned to the ac

the defendant guilty of uttering the forged cused, which statement was not based on per instrument as charged in the second count, sonal recollection but from the regular course but the judgment of conviction was set aside of business which had been followed. Held, that a sufficient foundation was laid for the ad

at the Appellate Division by a divided court, mission of secondary evidence of the contents for errors said to have heen committed by the of such notes.

trial court in its rulings upon the admission [Ed. Note.For cases in point, see vol. 14, and exclusion of evidence. Cent. Dig. Criminal Law, 88 887, 888.]

That the note was a forgery was conceded; 3. SAME-DECISION OF TRIAL COURT-FINAL

and it was established beyond a doubt that ITY. The decision of the trial court on the

Cockerill & Son, whose name had been signed sufficiency of the foundation for the admissibil to it, had never authorized such signing. It ity of secondary evidence, based on evidence was brought to the Twelfth Ward Bank of presenting a question of fact is not reviewable on appeal.

New York City on October 13, 1897, the day [Ed. Note.-For cases in point, see vol. 15,

of its date, by a Miss Fitzpatrick, who was Cent. Dig. Criminal Law, $$ 3066, 3074.] the bookkeeper of the defendant. The evi4. SAME-SELF-SERVING DECLARATIONS.

dence was sufficient to justify the jury in findWhere, on a trial for uttering a forged | ing that the defendant called at the bank latnote indorsed to a bank, accused testified that er in the same day and indorsed it. The he did not know that the note was a forgery

amount of the note was then placed to his until it became due, it was not error to refuse to permit him to state whether a third person,

credit. The defendant, testifying in his own present at the trial, had told him that she had behalf, stated that he was not in New York forged the note and whether the deceased pres City on that date; that he did not indorse ident of the bank had not told accused that the third person had stated that she had made

the note until some days later; and that he the note, 'the evidence sought to be elicited did not then know it was a forgery, as he had being self-serving declarations.

many transactions of a somewhat similar [Ed. Note.-For cases in point, see vol. 14, character with the bank. The defendant was Cent. Dig. Criminal Law, $$ 928–936.]

a stone contractor, and the evidence tended 5. SAME-MISCONDUCT OF JURY.

to show a course of business dealings between Code Cr. Proc. $ 425, provides that exhibits may be taken into the jury room on the consent

him and Cockerill & Son, who were building of defendant and the counsel for the people. contractors. For the purpose of showing guilDefendant in a criminal case did not consent ty knowledge on the part of the defendant, to the jury taking to the jury room exhibits

the prosecution proved the uttering by him of in evidence. The exhibits had been examined by the jury during the trial and it did not

several other forged notes. The defendant's appear what use they made of them while in counsel objected to the evidence relating to the jury room. Defendant made no objection these other notes, and the exceptions based until after verdict. Held not to show such substantial error as to warrant the court, on

upon that objection raise the important quesappeal, in awarding a new trial, section 542 tion in this case. Two of the other forged making it the duty of the court to render judg- notes were signed with the name of Cockerill ment without regard to technical errors.

& Son and made payable to the defendant. Appeal from Supreme Court, Appellate Di- They were indorsed by him and discounted at vision, First Department.

the Twelfth Ward Bank. The first one was James F. Dolan was convicted of forgery a three months' note dated May 13, 1897, and in the second degree. From a judgment of was for $2,500. The second was a two' the Appellate Division (97 N. Y. Supp. 929) months' note dated August 13, 1897, and was

for $2,000. It was given to pay off the first passing money really counterfeit.” The latnote, and at the same time the defendant ter observation very tersely states a rule that · paid the bank $500 and the amount of the dis is as applicable to prosecutions for forgery as count. The note set up in the indictment was to cases of passing counterfeit money. given to pay off this second note. There were It is contended, however, that the rule has two other forged notes signed with the name been changed by our decision in the recent of James Stewart & Co., who were also build case of People v. Weaver, 177 N. Y. 431, 69 ing contractors, between whom and the be N. E. 1094. We think there is no similarity fendant had been business dealings. Each one

between the two cases. In the Weaver Case of these notes was for $3,200, made payable it was claimed by the defendant that she beto the defendant and indorsed by him. The lieved in good faith to have been authorized first one was given to Isaac A. Hopper, who by one Davis to indorse the note there charprocured it to be discounted for the defendant ged as a forgery. Evidence of other forged at the Twenty-Third Ward Bank and turned notes not bearing the name of Davis was adover the proceeds to the defendant. The mitted. This was held to be error. In the second the defendant gave to John J. Hopper, case at bar the defendant does not claim to a brother of Isaac, who loaned him money on

have believed that he had authority to sign it. Still another one of the forged notes was the name of Cockerill & Son to the forged signed with the name of Patrick Gallagher, note he is charged with uttering. His contenwho was also a builder with whom the de tion is that he did not know it was a forgery. fendant had business dealings. This note The difference between the two cases is obwas for $1,697, and was discounted by the vious. Upon the record now before us the defendant at the Nineteenth Ward Bank. issue of guilty knowledge was squarely up All these transactions took place in 1897, and and, as bearing upon it, evidence of the utterthe evidence shows that at that time the de ing of other forged instruments by the defendant was in financial difficulties.

fendant was clearly competent. We think that all this evidence was clearly There is also another ground upon which competent and that the learned Appellate this evidence was competent. All the notes Division erred in holding otherwise. The referred to in the evidence were made at rules governing the introduction of proof of about the same time. In each case they were other crimes than that charged in the indict made payable to the defendant and indorsed ment have been so fully discussed in recent by him. During the period covered by all the cases in this court that no extended examina notes the defendant was endeavoring to tion of the authorities need here be made. raise sufficient funds to meet his obligations, People v. Molineux, 168 N. Y. 264, 61 N. E. and in each case he used the name of some 286, 62 L. R. A. 193; People v. Weaver, 177 builder with whom he had done business and N. Y. 434, 69 N. E. 1094. The case at bar is with whose affairs he was familiar. This controlled by the decision in People v. Ever combination of circumstances was sufficient hardt, 104 N. Y. 591, 11 N. E. 62. In that to establish a common plan and identity of case the late Judge Earl stated the rule as method so connected as to have a strong tenfollows: "Upon the trial the people were al

dency to overcome any claim of innocent inlowed to prove, against the objection of the tent in the uttering of the note charged in the defendant, the uttering of other forged checks indictment. The evidence bearing on these by him upon other occasions. In this there other notes served to show that the defendant was no error. The defendant, by his plea was endeavoring to meet his obligations as of not guilty, had put in issue everything they became due, by making a fraudulent and which it was incumbent upon the people to

intentional use of the names of contractors prove. They had no direct or positive evi with whom he had business relations. The dence that he personally forged the check same general features were present in all of which he uttered, and it was open for him the transactions which seem to have been to show that at the time he uttered it he had the product of one general scheme. These no knowledge that it was forged, and was

facts and circumstances were sufficient, we therefore innocent of crime; and for the pur think, to bring the case within the exceptions poses of showing the prisoner's guilty knowl to the general rule that excludes proof of edge in such cases it has always been held extraneous crimes. As was said in the Molincompetent to prove other forgeries. Such eux Case (168 N. Y. 264, 305, 61 N. E. 286, proof is not received for the purpose of show 62 L. R. A. 193): "They must be so connecting other crimes than that charged in the in ed as parts of a general scheme, or they dictment, but for the purpose of showing the must be so related to each other as to show a guilty knowledge and intent which are ele. common motive or intent running through ments of the crime charged, and it can be con them.” It is true that the evidence of this sidered by the jury only for that purpose.” general plan or scheme also tended to show "A man might think," said Judge Peckham in the defendant guilty of other crimes, but that, People v. Sharp, 107 N. Y. 467, 14 N. E. 319, as was very aptly stated by Judge Cooley in 1 Am. St. Rep. 851, “the money he passed was a Michigan case, is one of the misfortunes good, and he might be mistaken once or of such a defendant's position. Carver y. even twice; but the presumption of mistake People, 39 Mich. 786. lessens with every repetition of the act of It is further contended by the learned coun

sel for the defendant, that even if the evi from personal recollection as from the regdence relating to the other forged notes was ular course of business which had been foladmissible, yet no proper foundation was laid lowed. The first Cockerill note was for for its introduction. Notices to produce these $2,500, and was discounted at the Twelfth other notes had been served by the prosecu Ward Bank. It came due August 13, 1897, tion upon the defendant, but they were not and on that day was seen in the possession produced at the trial. The prosecution was of the note teller. Later in the day the dethus driven to give secondary evidence of fendant came to the bank, paid $500, and their contents. When that was attempted gave a new note for $2,000, and also paid the the objection was promptly raised that such amount of the discount, thus paying off the evidence could only be received after proof of first note. The president of the bank who loss or destruction of the notes, or of their had conducted this transaction was dead, and delivery to the defendant. It is an eminently there was nobody to swear that the note was safe rule that where it is sought to give actually delivered to the defendant. The evidence of other forgeries, the forged docu second Cockerill note came due on October ments upon which it is predicated must be 13th, the date of the note set up in the inproduced, and so it has been held in other dictment, and was paid off by the giving of jurisdictions. State v. Breckenridge, 67 Iowa, the latter note. Defendant came to the bank 204, 25 N. W. 130; State v. Saunders, 68 Iowa, on that day to indorse the latter note. Isaac 371, 27 N. W. 455; People v. Lagrille, 1 A. Hopper, who was vice-president of the Wheeler's Crim. Cas. 412; Anson v. People, bank, testified that he returned one of these 148 Ill. 503, 35 N. E. 145. But in none of the notes to the defendant, but he did not know cases cited was there any notice to produce; which one, and the cashier testified to the neither were the instruments in question custom that when a new note was given the sought to be accounted for. The rule is sub old one was returned. The first Stewart ject to the same qualification in criminal as note was for $3,200, dated July 29 or 30, 1897, in civil cases. The instrument must be pro and payable at the Marine Bank of Buffalo. duced or its absence satisfactorily accounted It was discounted at the Twenty-Third Ward for. State v. Cole, 19 Wis. 129, 134, 88 Am. Bank of New York City at the request of Dec. 678. Of course the mere notice to pro Isaac A. Hopper, and fell due about Octduce does not take the place of evidence, and ober 25, 1897. On October 19th John J. it must be shown that the instrument is in the Hopper, a brother of Isaac, loaned defendpossession or under the control of the party ant $3,200 to pay off this note, and defendant required to produce it. Smith v. Streat, 1 promised to bring the note to him when paid, Carr. & Kirw. 48. “But of this fact very but failed to do so. It was paid by defendslight evidence will raise a sufficient presump ant at the bank on October 29th, and ordered tion where the instrument exclusively belongs returned from Buffalo, to which place it had to him, and has recently been or regularly been mailed. It was received at the bank on ought to be in his possession, according to the October 26th. The second Stewart note was course of business.” 1 Greenleaf, Ev. $ 560. returned to defendant by John J. Hopper. In Robb v. Starkey, 2 Carr. & Kirw. 143, The Gallagher note was discounted at the 61 Eng. Com. L. R. 143, a notice to produce Nineteenth Ward Bank and came due about a contract was served upon

defendant. August 25, 1897. Defendant paid the note Plaintiff's clerk testified that he could not at the bank on August 27th. He had receivsay positively whether he had sent that par ed a $1,500 check from John J. Hopper and ticular contract to Bourne, defendant's bro this check was received at the bank when the ker; but he also stated that if it came into note was paid. his hands to be delivered to Bourne in the From this résumé of the evidence bearing ordinary course of business, he had no doubt upon the ultimate disposition of the several that it had been delivered. This was held notes referred to, we think it is quite persufficient to permit secondary evidence of the missible to draw the conclusion that they contract. To the same effect is Henry V. were all returned to the possession of the Leigh, 3 Campb. 499, decided by Lord Ellen defendant. That was the ordinary course of borough.

business, as testified to by one of the witIn the light of these suggestions let us nesses, and that is the familiar experience now examine the evidence in the case at bar of all who have occasion to pay notes at as to the other forgeries. There were five of banks. There was evidence in this behalf them; two Cockerill notes, two Stewart & Co. which, to say the least, presented a question notes, and one Gallagher note for $1,697. of fact for the determination of the trial

There was fragmentary and incomplete evi- judge, and his decision thereon is not review

dence as to other Gallagher notes, but the evidence as to all Gallagher notes, except the one for $1,697, was stricken out and need not be considered. In each case where the note then considered was not directly traced into the defendant's hands, an officer of a bank testified that it had been returned to the defendant, but this was stated not so much

able in this court. Dix v. Atkins, 128 Mass.
43; Kearney v. Mayor, etc., of N. Y., 92 N. Y. .
617, 621; Mason v. Libbey, 90 N. Y. 683;
McCulloch v. Hoffman, 73 N. Y. 615; Thomp-
son on Trials, $ 806. It may be added that
where the instruments sought to be produced
are of little or no value, as in this case, the
proof required to establish loss or possession

OD | jury room certain exhibits introduced in evi

is proportioned to their character and value. the counsel for the defendant called attention Jackson v. Root, 18 Johns. 60, 73; Thompson to the fact that the jury had taken to the on Trials, $ 809; 1 Greenleaf, Ev. § 558.

The next question for consideration arises dence by the prosecution. This was subupon the exclusion of certain questions put to sequently urged as ground for setting the the defendant by his counsel when he was verdict aside. It does not clearly appear testifying in his own behalf. The defendant just how the jury obtained possession of the had testified that he did not know that the exhibits. Under section 425 of the Code of note set up in the indictment was a forgery Criminal Procedure, exhibits can be taken until it became due on November 13, 1897, into the jury room "only upon the consent when he was informed by Mr. Steers, the of the defendant and the counsel for the president of the bank, that there was an in. people." The defendant did not consent to formality about it, and that he, the defend the taking of these exhibits, but no objection ant, returned to his office and had a con was made to the jury having them until versation with Miss Fitzpatrick. The fol after the verdict against the prisoner had lowing questions were then asked him and been rendered, which was more than an hour excluded under exception : "Q. As a result of after the jury had retired for deliberation. that conversation did you direct her to go to The exhibits thus taken were two notes made any one and tell her what to tell thein ? by the defendant on the same date as the Q. Who did you tell her to go to see? Q. note charged in the indictment, introduced to Did you afterwards, after that time, see show that the defendant was in New York Mr. Steers, the president of the bank, and City on that date, and a specimen note writdid he tell you that Miss Fitzpatrick had ten by the defendant at the trial at the rebeen to see him? Q. Did you after that time quest of the district attorney. These papers see Mr. John F. Cockerill, and did he tell had been examined by the jury during the you that Miss Fitzpatrick had been to see trial. It does not appear what use the jury him? A. Yes, sir; he did. Q. Now, when made of them while in the jury room, and you saw Miss Fitzpatrick at your office did we do not think their further examination she tell you that she had made that note?

of them, if any, was such a substantial error Q. Did Mr. Steers, the president of the bank, as to warrant this court in awarding a new after the 13th day of November, 1897, tell trial. It is our duty to render judgment you that she had been to see him and told without regard to technical errors, defects, him that she made that note? Q. Did Kate or exceptions which do not affect the subFitzpatrick, when you saw her in the office, stantial rights of the parties. Code Cr. Proc. tell you that she had made that note?" It § 542; People v. Gallagher, 75 App. Div. 39, is contended by the learned counsel for the

78 N. Y. Supp. 5, affirmed 174 N. Y. 505, 66 defendant, and the Appellate Division has N. E. 1113. held, that the facts called for by these ques The record contains other exceptions to tions were admissible as tending to show rulings and to refusals by the trial court that the defendant did not know the note

to charge as requested by defendant's counset forth in the indictment was a forgery, sel, but these present no question of suffiand as bearing upon the question of his cient importance to justify further discussintent in uttering it. It may be conceded ion. that he had the right to introduce all prop The order of the Appellate Division should er evidence tending to establish these facts, be reversed, and the judgment of conviction but we do not think the evidence called for

of the trial court affirmed. by the quoted questions is of that character. It is obvious that these interrogatories were CULLEN, C. J., and GRAY, EDWARD T. designed to elicit self-serving declarations BARTLETT, VANN, WILLARD BART. and hearsay statements of the bank presi LETT, and CHASE, JJ., concur. dent and Miss Fitzpatrick, the latter of whom was in the court room and might have Order reversed, etc. been called had the defendant desired her evidence. It appears that the bank president had died prior to the trial, but that did

(186 N. Y. 40) not make the evidence admissible. Gray KRONOLD v. CITY OF NEW YORK. V. Goodrich, 7 Johns. 95. Had the declar

(Court of Appeals of New York. Oct. 2, 1906.) ations called for been admitted, they would

DAMAGES PERSONAL INJURIES Loss OF have been hearsay, which were not within

EARNINGS-INVESTED CAPITAL. any of the exceptions to the rule excluding

The evidence in an action for personal insuch evidence. We think the rulings of the juries showed that plaintiff prior to the accitrial court in this regard were correct,

dent was engaged in selling embroideries, taking since the defendant was permitted to testi

orders from manufacturers of articles in which

they were used, the sales being made from drawfy to the one competent fact, that the first

ings procured from sample embroideries, no conknowledge he had that the note was a forg siderable stock of embroideries being carried by ery was when he talked with Miss Fitz plaintiff, and only $1,000 capital being invested

in his business; that his office expenses, which patrick.

included rent and wages of a boy, did not exAfter the jury had brought in their verdict ceed $600 a year; that his net income was about

to

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