ment if plaintiff ought to have its aforesaid action against it,' etc. Appellee filed a similiter to the general issue and demurred to the special plea. The court overruled the demurrer. Appellant elected to stand by the demurrer. Thereupon the court ordered, 'therefore it is considered by the court that defendant go hence without day and that plaintiff takes nothing by the aforesaid action,' and entered a judgment for costs against appellant. The case is brought to this court by appeal. Appellant assigns as error the action of the trial court in overruling its demurrer and entering judgment in bar of its cause of action."

Charles H. Blatchford (Ralph M. Shaw, of counsel), for appellant. Albert N. & Edw. S. Eastman, for appellee.

SCOTT, C. J. (after stating the facts). Section 67b, c. 32, Hurd's Rev. St. 1903, provides that no foreign corporation organized for pecuniary profit shall be authorized or permitted to transact business in this state, or to continue business herein if already established, until it shall designate some person as its agent or representative in this state on whom service of legal process may be had. Section 67d of the same chapter provides a punishment for any neglect or failure to comply with the act, and contains this further language: "In addition to which penalty, on and after the going into effect of this act no foreign corporation, as above defined, which shall fail to comply with this act, can maintain any suit, or action, either legal or equitable, in any of the courts of this state upon any demand, whether arising out of contract or tort." The two sections above referred to are parts of an act which became effective on July 1, 1899. Laws 1899, p. 118.

According to the averments of this plea, appellant transacted the business in question in this state at a time when it was forbidden by our laws so to do, and it was not permitted by our laws to maintain any suit, either legal or equitable, in any of the courts of this state when this suit was instituted. Appellant's contention is, that its right to bring this action is not barred by these statutes; that they merely abate this suit, leaving to the foreign corporation the right to

maintain its action if it shall hereafter qualify to transact business in this state.

In the case of Cincinnati Mutual Health Assurance Co. v. Rosenthal, 55 Ill. 85, 8 Am. Rep. 626, a similar question arose, the foreign corporation there being an insurance company which had brought suit in this state upon a note given to it for stock in the corporation and for premium on a policy of insurance. It appeared that the contract in pursuance of which the note was given was entered into and the note executed and delivered in this state when the plaintiff was not authorized to transact business in this state, for the reason that it had not complied with the laws of the state in reference to foreign insurance companies. Its lack of authority to conduct its affairs in this state was interposed in bar of the action, and the court, after pointing out that the statute expressly prohibited such a company from effecting insurance or transacting business in this state until after it should have complied with the statute in reference thereto, used this language: "When the Legislature prohibits an act or declares that it shall be unlawful to perform it, every rule of interpretation must say that the Legislature intended to interpose its power to prevent the act, and, as one of the means of its prevention, that the courts shall hold it void. This is as manifest as if the statute had declared that it should be void." This case has been cited with approval on a similar proposition in Penn v. Bornman, 102 Ill. 523, and Illinois State Trust Co. v. St. Louis, Iron Mountain & Southern Railway Co., 208 Ill. 419, 70 N. E. 357.

The contract upon which this suit was brought, having been entered into in this state when appellant was not permitted to transact business in this state, is in violation of the plain provisions of the statute, and is therefore null and void, and no action can be maintained thereon at any time, even if the corporation should at some time after the making of the contract qualify itself to transact business in this state by a compliance with our laws in reference to foreign corporations that desire to engage in business here.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

OTHER FORGERIES-ADMISSIBILITY. On a trial for uttering a forged note by 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 individuals, was admissible as showing guilty knowledge, especially where all the notes were made at about the same time and during the time accused was endeavoring to raise funds to meet his obligations, and where in each case he used the names of persons with whom he had done business and with whose affairs he was familiar.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 833, 834.]

2. SAME-EVIDENCE-SECONDARY EVIDENCEADMISSIBILITY-SUFFICIENCY OF FOUNDA

TION.

On a trial for uttering a forged note, the prosecution served notice on accused to produce other notes alleged to be forgeries, but he failed to do so. Some of the notes were traced directly into the hands of accused, while in case of notes indorsed to banks the officers of the banks testified that they had been returned to the accused, which statement was not based on personal recollection but from the regular course of business which had been followed. Held, that a sufficient foundation was laid for the admission of secondary evidence of the contents of such notes.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 887, 888.] 3. SAME-DECISION OF TRIAL COURT-FINALITY.

The decision of the trial court on the sufficiency of the foundation for the admissibility of secondary evidence, based on evidence presenting a question of fact is not reviewable on appeal.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 3066, 3074.] 4. SAME SELF-SERVING DECLARATIONS.

Where, on a trial for uttering a forged note indorsed to a bank, accused testified that he did not know that the note was a forgery until it became due, it was not error to refuse to permit him to state whether a third person, present at the trial, had told him that she had forged the note and whether the deceased president of the bank had not told accused that the third person had stated that she had made the note, the evidence sought to be elicited being self-serving declarations.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 928-936.] 5. SAME-MISCONDUCT OF JURY.

Code Cr. Proc. § 425, provides that exhibits may be taken into the jury room on the consent of defendant and the counsel for the people. Defendant in a criminal case did not consent to the jury taking to the jury room exhibits in evidence. The exhibits had been examined by the jury during the trial and it did not appear what use they made of them while in the jury room. Defendant made no objection until after verdict. Held not to show such substantial error as to warrant the court, on appeal, in awarding a new trial, section 542 making it the duty of the court to render judgment without regard to technical errors.

Appeal from Supreme Court, Appellate Division, First Department.

James F. Dolan was convicted of forgery In the second degree. From a judgment of the Appellate Division (97 N. Y. Supp. 929)

reversing the judgment, the people appeal. Judgment of the Appellate Division reversed, and judgment of conviction affirmed.

Wm. Travers Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for the People. Alfred R. Page, for respondent.

The

WERNER, J. The defendant was indicted by the grand jury of New York county for the crime of forgery in the second degree. The indictment contained two counts. first count charged him with forging a note dated October 13, 1897, for $2,000, payable to the order of himself at the West Side Bank, and purporting to be signed by the firm of Thos. Cockerill & Son. The second count charged him with feloniously uttering the same forged instrument with intent to defraud, knowing it to be forged. The first count was abandoned at the trial and the defendant was tried and convicted on May 19, 1904, upon the second count. There was ample evidence to warrant the jury in finding the defendant guilty of uttering the forged instrument as charged in the second count, but the judgment of conviction was set aside at the Appellate Division by a divided court, for errors said to have heen committed by the trial court in its rulings upon the admission and exclusion of evidence.

That the note was a forgery was conceded; and it was established beyond a doubt that Cockerill & Son, whose name had been signed to it, had never authorized such signing. It was brought to the Twelfth Ward Bank of New York City on October 13, 1897, the day of its date, by a Miss Fitzpatrick, who was the bookkeeper of the defendant. The evidence was sufficient to justify the jury in finding that the defendant called at the bank later in the same day and indorsed it. The amount of the note was then placed to his credit. The defendant, testifying in his own behalf, stated that he was not in New York City on that date; that he did not indorse the note until some days later; and that he did not then know it was a forgery, as he had many transactions of a somewhat similar character with the bank. The defendant was a stone contractor, and the evidence tended to show a course of business dealings between him and Cockerill & Son, who were building contractors. For the purpose of showing guilty knowledge on the part of the defendant, the prosecution proved the uttering by him of several other forged notes. The defendant's counsel objected to the evidence relating to these other notes, and the exceptions based upon that objection raise the important question in this case. Two of the other forged notes were signed with the name of Cockerill & Son and made payable to the defendant. They were indorsed by him and discounted at the Twelfth Ward Bank. The first one was a three months' note dated May 13, 1897, and was for $2,500. The second was a two months' note dated August 13, 1897, and was

sel for the defendant, that even if the evidence relating to the other forged notes was admissible, yet no proper foundation was laid for its introduction. Notices to produce these other notes had been served by the prosecution upon the defendant, but they were not produced at the trial. The prosecution was thus driven to give secondary evidence of their contents. When that was attempted the objection was promptly raised that such evidence could only be received after proof of loss or destruction of the notes, or of their delivery to the defendant. It is an eminently safe rule that where it is sought to give evidence of other forgeries, the forged documents upon which it is predicated must be produced, and so it has been held in other jurisdictions. State v. Breckenridge, 67 Iowa, 204, 25 N. W. 130; State v. Saunders, 68 Iowa, 371, 27 N. W. 455; People v. Lagrille, 1 People v. Lagrille, 1 Wheeler's Crim. Cas. 412; Anson v. People, 148 III. 503, 35 N. E. 145. But in none of the cases cited was there any notice to produce; neither were the instruments in question sought to be accounted for. The rule is subject to the same qualification in criminal as in civil cases. The instrument must be produced or its absence satisfactorily accounted for. State v. Cole, 19 Wis. 129, 134, 88 Am. Dec. 678. Of course the mere notice to produce does not take the place of evidence, and it must be shown that the instrument is in the possession or under the control of the party required to produce it. Smith v. Streat, 1 Carr. & Kirw. 48. "But of this fact very slight evidence will raise a sufficient presumption where the instrument exclusively belongs to him, and has recently been or regularly ought to be in his possession, according to the course of business." 1 Greenleaf, Ev. § 560. In Robb v. Starkey, 2 Carr. & Kirw. 143, 61 Eng. Com. L. R. 143, a notice to produce a contract was served upon upon defendant.

Plaintiff's clerk testified that he could not say positively whether he had sent that particular contract to Bourne, defendant's broker; but he also stated that if it came into his hands to be delivered to Bourne in the ordinary course of business, he had no doubt that it had been delivered. This was held sufficient to permit secondary evidence of the contract. To the same effect is Henry v. Leigh, 3 Campb. 499, decided by Lord Ellenborough.

In the light of these suggestions let us now examine the evidence in the case at bar as to the other forgeries. There were five of them; two Cockerill notes, two Stewart & Co. notes, and one Gallagher note for $1,697. There was fragmentary and incomplete evidence 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

from personal recollection as from the regular course of business which had been followed. The first Cockerill note was for $2,500, and was discounted at the Twelfth Ward Bank. It came due August 13, 1897, and on that day was seen in the possession of the note teller. Later in the day the defendant came to the bank, paid $500, and gave a new note for $2,000, and also paid the amount of the discount, thus paying off the first note. The president of the bank who had conducted this transaction was dead, and there was nobody to swear that the note was actually delivered to the defendant. The second Cockerill note came due on October 13th, the date of the note set up in the indictment, and was paid off by the giving of the latter note. Defendant came to the bank on that day to indorse the latter note. Isaac A. Hopper, who was vice-president of the bank, testified that he returned one of these notes to the defendant, but he did not know which one, and the cashier testified to the custom that when a new note was given the old one was returned. The first Stewart note was for $3,200, dated July 29 or 30, 1897, and payable at the Marine Bank of Buffalo. It was discounted at the Twenty-Third Ward Bank of New York City at the request of Isaac A. Hopper, and fell due about October 25, 1897. On October 19th John J. Hopper, a brother of Isaac, loaned defendant $3,200 to pay off this note, and defendant promised to bring the note to him when paid, but failed to do so. It was paid by defendant at the bank on October 29th, and ordered returned from Buffalo, to which place it had been mailed. It was received at the bank on October 26th. The second Stewart note was returned to defendant by John J. Hopper. The Gallagher note was discounted at the Nineteenth Ward Bank and came due about August 25, 1897. Defendant paid the note at the bank on August 27th. He had received a $1,500 check from John J. Hopper and this check was received at the bank when the note was paid.

Th

From this résumé of the evidence bearing upon the ultimate disposition of the several notes referred to, we think it is quite permissible to draw the conclusion that they were all returned to the possession of the defendant. That was the ordinary course of business, as testified to by one of the witnesses, and that is the familiar experience of all who have occasion to pay notes at banks. There was evidence in this behalf which, to say the least, presented a question of fact for the determination of the trial judge, and his decision thereon is not reviewable 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; Thompson 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

is proportioned to their character and value. Jackson v. Root, 18 Johns. 60, 73; Thompson on Trials, § 809; 1 Greenleaf, Ev. § 558.

The next question for consideration arises upon the exclusion of certain questions put to the defendant by his counsel when he was testifying in his own behalf. The defendant had testified that he did not know that the note set up in the indictment was a forgery until it became due on November 13, 1897, when he was informed by Mr. Steers, the president of the bank, that there was an informality about it, and that he, the defendant, returned to his office and had a conversation with Miss Fitzpatrick. The following questions were then asked him and excluded under exception: "Q. As a result of that conversation did you direct her to go to any one and tell her what to tell them? Q. Who did you tell her to go to see? Q. Did you afterwards, after that time, see Mr. Steers, the president of the bank, and did he tell you that Miss Fitzpatrick had been to see him? Q. Did you after that time see Mr. John F. Cockerill, and did he tell you that Miss Fitzpatrick had been to see him? A. Yes, sir; he did. Q. Now, when you saw Miss Fitzpatrick at your office did she tell you that she had made that note? Q. Did Mr. Steers, the president of the bank, after the 13th day of November, 1897, tell you that she had been to see him and told him that she made that note? Q. Did Kate Fitzpatrick, when you saw her in the office, tell you that she had made that note?" It is contended by the learned counsel for the defendant, and the Appellate Division has held, that the facts called for by these questions were admissible as tending to show that the defendant did not know the note set forth in the indictment was a forgery, and as bearing upon the question of his intent in uttering it. It may be conceded that he had the right to introduce all proper evidence tending to establish these facts, but we do not think the evidence called for by the quoted questions is of that character. It is obvious that these interrogatories were designed to elicit self-serving declarations and hearsay statements of the bank president and Miss Fitzpatrick, the latter of whom was in the court room and might have been called had the defendant desired her evidence. It appears that the bank president had died prior to the trial, but that did not make the evidence admissible. Gray v. Goodrich, 7 Johns. 95. Had the declarations called for been admitted, they would have been hearsay, which were not within any of the exceptions to the rule excluding such evidence. We think the rulings of the trial court in this regard were correct, since the defendant was permitted to testify to the one competent fact, that the first knowledge he had that the note was a forgery was when he talked with Miss Fitzpatrick.

After the jury had brought in their verdict

the counsel for the defendant called attention to the fact that the jury had taken to the jury room certain exhibits introduced in evidence by the prosecution. This was subsequently urged as ground for setting the verdict aside. It does not clearly appear just how the jury obtained possession of the exhibits. Under section 425 of the Code of Criminal Procedure, exhibits can be taken into the jury room "only upon the consent of the defendant and the counsel for the people." The defendant did not consent to the taking of these exhibits, but no objection was made to the jury having them until after the verdict against the prisoner had been rendered, which was more than an hour after the jury had retired for deliberation. The exhibits thus taken were two notes made by the defendant on the same date as the note charged in the indictment, introduced to Ishow that the defendant was in New York City on that date, and a specimen note written by the defendant at the trial at the request of the district attorney. These papers had been examined by the jury during the trial. It does not appear what use the jury made of them while in the jury room, and we do not think their further examination of them, if any, was such a substantial error as to warrant this court in awarding a new trial. It is our duty to render judgment without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties. Code Cr. Proc. § 542; People v. Gallagher, 75 App. Div. 39, 78 N. Y. Supp. 5, affirmed 174 N. Y. 505, 66 N. E. 1113.

The record contains other exceptions to rulings and to refusals by the trial court to charge as requested by defendant's counsel, but these present no question of sufficient importance to justify further discussion.

The order of the Appellate Division should be reversed, and the judgment of conviction of the trial court affirmed.