233; 20 N. Y., 412; 9 Paige, 200; | monly called a mortgage, for pay18 Barb., 561; 80 N. Y., 591. ment of money, which said * * is as follows" and then is set out an instrument, purporting to be a mortgage, dated October 18, 1881, made by one W., of Richmond, Ontario county, to the comm.issioners for loaning certain moneys of the United States for the county of Ontario, granting certain lands in Richmond, conditioned to pay $1,200, in a certain time, with an The People, respts., v. Albert nual interest, signed and sealed L. Dewey, applt. Decided Jan., 1885. Certain evidence held sufficient to support a charge and conviction of forgery in the third degree. Where a juror stated that he had formed an opinion, but thought that he could render an impartial verdict on the evidence, Held, That the court was authorized to determine that the juror was competent. It is sufficient, as a charge of forgery in the third degree, that the instrument set out in the indictment and alleged to be forged contains a personal covenant to pay upon a stated consideration. The indictment charged the forgery of an instrument signed and sealed, and the instrument produced on the trial was without signature or seal, they having been torn off. Held, Not such a variance as to make the instrument inadmissible in evidence; nor were any explanatory allegations required to permit parol evidence of mutilation. Evidence bearing on the question of motive and intent is not incompetent because it may charge the party with official delinquency, and might go in support of a charge for another crime. Appeal from conviction and judgment, at Oyer and Terminer, of forgery in the third degree. The first count of the indictment charged that defendant feloniously did falsely make, forge, etc., "a certain instrument in writing, com by W., and witnessed by T. and J. The count then proceeds, "with intent to injure and defraud the United States and divers other persons to jurors unknown." The second count alleges the intent to defraud the State of New York. The third count alleges that defendant, at the time, knowingly, falsely forged, etc., against the form of the statute and against the Defendant peace of the people. was "commissioner for loaning certain moneys of the United States," from February, 1873, to June, 1882. In the commissioners' book of mortgages executed, and of blanks to be filled, required to be kept, appeared what purported to be a mortgage, as set forth in the indictment. The same appeared in substance in the minute book, also required to be kept. The written portions of the instrument and the entry in the minute book were in defendant's handwriting, and no one having the name of the pretended mortgagor, nor any persons bearing the names of the witnesses, lived in Richmond. The only evidence of their existence was the instrument itself. The evidence tended to show that defendant was short in his official accounts. On October 12, 1882, defendant paid his successor in office the full amount of the mortgage, and his successor tore out of the instrument the name and seal of the apparent maker, and gave the piece torn out to defendant. One of the jury, being challenged by defendant, stated on oath that he had heard the charge discussed some, and had formed an opinion as to defendant's guilt or innocence; that he retained his opinion, based partly on rumor, partly on what he had heard from people who pretended to know, and that it would require evidence to overcome his opinion, but that he believed he could render an impartial verdict on the testimony regardless of that opinion. It does not appear that defendant's peremptory challenges were exhausted. The court overruled defendant's challenge, made on the ground that the juror had formed and expressed an opinion and for bias. Edwin Hicks, for applt. Oliver C. Armstrong, District Attorney, for respts. Held, That the indictment was sufficient to support the charge of forgery in the third degree. 2 R. S., 673, § 33, sub. 2. If the instrument had been genuine it would have been a valid mortgage which could have been enforced. The evidence supported the charge and conviction. The court was warranted in determining the question of the juror's competency as one of fact. The old rule has been relaxed. See Laws 1872, Ch. 475; Code Crim. Pro., § 376, sub. 2; 74 N. Y., 277; 80 id., 484; id., 500; 92 id., 85; 18 Hun, 560; 96 N. Y., 115, 124. The indictment was sufficient. 12 Wend., 425; 21 id., 409; 15 Abb. Pr., 154; 26 N. Y., 193; 3 Hun, 287; 21 id., 140. The absence of the name and seal from the instrument, when put in evidence, did not make the evidence inadmissible, nor were any explanatory allegations required to permit parol evidence of the mutilation. See Laws 1837, Ch. 150; 2 Cow., 522; 16 Wend., 53; 5 Park. Cr., 313; 2 Abb. Dec., 31; 3 Mass., 81. Evidence of deficiency in defendant's accounts was admissible upon the question of motive and intent. 56 N. Y., 591; 58 id., 555. Conviction and judgment affirmed. Opinion by Bradley, J.; Haight and Childs, JJ., concur. LIMITATION. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. William Slocum, applt., v. Mary R. Stoddard, respt. Decided Nov., 1884. A judgment was recovered in justice's court in 1873, and in 1880 was docketed in a county clerk's office. In 1884 a motion was made for leave to prosecute it in this court. Held, That the six years' limitation fixed by § 382, sub. div. 7, of the Code of Civ. Pro. applied, and that the action was barred. Decided Jan. 9, 1885. Appeal from order of county respts., v. John B. Thompson, judge, denying leave to prosecute impld., applt. in this court a judgment recovered in 1873 in a justice's court, and docketed in August, 1880, in a county clerk's office. The motion before the county judge was made in 1884. J. C. Hulbert, for applt. could not give it vitality. CORPORATIONS. DEBTS. It is very questionable whether a debt owing by a corporation for advances made by one of its directors can be included in the debts of such corporation in order to render its directors personally liable for them under § 22 of Chap. 611, Laws of 1875, upon the ground that such debts exceed the capital stock of the corporation. Appeal from a judgment overruling a demurrer to the complaint. This action was brought against the defendants as directors of the Rockaway Beach Improvement Company, Limited, to enforce their personal liability for the debts of such company upon the ground that the debts of said corporation exceeded the amount of its capital stock, and also that the word "limited" had been omitted in the use of the name of the company. It appeared upon the face of the complaint that, included in the indebtedness of the company, and necessary to make the same exceed the capital stock of the company, was a judgment the consideration of which was advances made by one of the directors of the company. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. Lewis Sanders, for applt. Held, That it was very questionable whether this judgment could be included in the indebtedness authorizing an action of this character, § 22, Chap. 611, Laws Andrew J. Robinson et al., 1875, because it was founded upon advances made by a codirector, 65 N. Y. 255; 80 id., 610, but that it was distinctly alleged that there was an omission to use the word "limited" as required by the statute, § 35, Chap. 611, Laws 1875, and that was a sufficient answer to the demurrer. Judgment affirmed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. William B. Leonard et al., applts., v. John Demerritt, respt. Decided Jan. 9, 1885. Admissions of a former owner of a note affecting its validity cannot be given in evidence against parties who acquired title to such note from him subsequent to its maturity, and who are proceeding for its recovery. Appeal from judgment entered on verdict and from order denying plaintiff's motion to set aside the verdict and for a new trial. This action was brought upon a promissory note made by defendant to one H., as executor. The note was assigned and transferred one D. was called as a witness and was allowed to testify against the objection and exception of the plaintiff to certain admissions of H. made in a conversation with the witness after the note was given, tending to uphold the theory of the defence. E. More, for applt. W. G. Wilson, for respt. Held, That the declarations of a former owner of a note which are mere admissions affecting its validity cannot thus be given in evi- dence against parties who have derived title from him, and who are prosecuting for its recovery. That inasmuch as the determination of the case depended upon conflicting evidence, H. having subsequently testified to a state of facts in direct conflict with the theory of the defence, this evidence may have had a serious effect upon the minds of the jury and the judgment should therefore be reversed and ordered. new trial Opinion by Davis, P.J.; Brady and Daniels, JJ., concur. NEGLIGENCE. DAMAGES. MARRIED WOMEN. TERM. THIRD DEPT. to the plaintiff by H. after matur- N. Y. SUPREME COURT. GENERAL ity, and the defence set up was that the note represented an indebtedness of a firm of which defendant was a member to the tes tator of H. and that it was agreed that such note should be paid out of the proceeds of the business carried on by said firm without actual liability of the defendant upon the note. Upon the trial Julia E. Houghkirk, respt., v. The Delaware & Hudson Canal Co., applt. Decided Nov., 1884. Plaintiff, a married woman, not carrying on a separate business, was injured. By the same accident her husband was injured, and he has an action pending therefor. The court, after stating the ground upon which damages could be given plaintiff in this action, said, "for her discomfort in the past and for her discomfort in the future and for her inability to labor you may also compensate." Held, Error; because under this language damages might have been given the wife by the jury for loss of services, which latter were the property of the husband. Appeal from a verdict for plaintiff, given for injuries sustained by being struck by an engine of defendant. At the same moment plaintiff's husband was injured. He has an action pending. In his charge, the justice who tried the case, after stating various grounds upon which damages might be given plaintiff, added, "for her discomfort in the past and for her discomfort in the future and for her inability to labor you may also compensate." To this defendant excepted. Plaintiff recovered $14,000. Edwin Young and Henry Smith, for applt. E. Countryman, for respt. Held, That the charge was erroneous. Plaintiff was a married woman living with her husband, and not carrying on any separate business. The husband, who also has a suit pending for the same accident, is entitled to recover for the loss of time and of services caused by the injury to his wife. 49 N. Y., 47; 54 id., 343. Plaintiff urges that the words "inability to labor" did not refer to loss of services, but was a characterization of the severity of plaintiff's injury. But the court. But the court had already fully described the injuries sustained, and had stated that pain, etc., could be compensated for. We think the charge left the jury at liberty to compensate plaintiff for damages resulting from her inability to labor. And regard being had to the amount of the verdict, we think the jury acted upon that theory. This was error. New trial granted, costs to abide event. Opinion by Landon,J.; Learned, P. J., and Bockes, J., concur. REMEDIES. SALE. FRAUD. TERM. FOURTH DEPT. Julius M. Wile et al., respts., v. Marcus Brownstein, applt. J. Daniel Ackerman et al., respts., v. Same, applt. David H. Sahlein et al., respts., v. Same, applt. Decided Jan., 1885. Where a vendor has brought action of replevin on the ground that the goods were obtained from him by fraud, and while such action is pending, he cannot divide his action and sue upon contract to recover the value of the goods not taken in the replevin proceedings. Section 1719, Code Civ. Pro., furnishes no authority for such a procedure. Appeals from judgments in favor of the several plaintiffs. Prior to December 1, 1882, the plaintiffs in the above-entitled actions sold and delivered goods to defendant and subsequently brought replevin actions for the goods, alleging that they were obtained by fraudulent representa tions, with intent on the part of defendant not to pay for them and |