account. The judgment went further and directed that of the stocks and bonds purchased by the firm certain bonds and shares of stock be delivered to one J. in satisfaction of his subscription and that certain bonds and stock be delivered to one D. in satisfaction of his subscription and that there be delivered to H. & P. 25 shares of stock for commissions for services rendered the joint venture.

Holmes & Adams and W. H. Arnoux, for applt.

Albert Stickney, for respt.

Held, That in so far as the judgment finds the existence of the copartnership and directs an accounting it should be upheld. But it cannot be upheld in so far as it directs the distribution of certain of the firm property to persons not mentioned in the complaint nor parties to the suit. The pleadings as to such persons presented no issues, and it seems to us a final judgment against defendant in their favor could not properly be rendered. The judgment would not be binding upon the parties who were to receive the bonds and stock, so as to prevent their contesting hereafter any question or claim as to title or amount they should see fit to make as against the co-partnership. Nor, if any third party has become by assignment or otherwise entitled to their interest, would such party be precluded by the judgment from presenting the claim against the co-partnership. When the learned referee ascertained, after finding that the copartnership existed, that there were outstanding claims of third parties

against the property over which the controversy arose, he should, if those parties were not in some form properly brought into the action, have directed the appointment of a receiver to take the copartnership property and ascertain what valid claims, if any, existed against it, and who were the owners and holders of such claims, and the judgment should have directed that after the payment of such claims the balance should be disposed of in conformity to the interests of plaintiff and defendant respectively in accordance with the findings and judg ment. Such a judgment is now directed directing the appointment of a receiver, &c., as should have been directed by the referee. Costs were properly awarded to plaintiff inasmuch as defendant denied the existence of the co-partnership and made the action necessary. We do not see upon what ground the additional allowance of $1,000 was made by the court. The amount of the controversy was altogether too small to uphold such an allowance. That question, however, is not brought up by this appeal.

Judgment modified.

Opinion by Davis, P. J.; Daniels, J., concurs; Brady, J., concurs in the result.

FORGERY. PRACTICE.

EVIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

The People, respts., v. Louis D'Argencour, applt.

Decided March 7, 1884.

An averment of fraudulent intent is an essential element of an indictment for forgery in the second degree committed by making a plate in the form and similitude of an evi

dence of debt of a foreign bank without the

authority of such bank; but, in order to take advantage of the omission of such averment, a motion in arrest of judgment must be made for that reason before or at

the time when defendant is called for judg ment; and, if such motion is not made at that time, defendant cannot afterwards complain of the defect in the indictment. In such a prosecution the incorporation of the foreign bank can be legally proved for the purposes of the trial by a witness who knows the fact, or even by general reputation, and it is not necessary to produce the law under which the bank was incorpor

ated.

Courts will take judicial notice that the island of Cuba is a dependency of the Kingdom of Spain, and subject to its goverment.

Appeal from from judgment convicting defendant of forgery in the second degree.

Defendant was accused by the indictment of forgery in the second degree, committed by making a plate in the form and similitude of a promissory note issued by El Banco Espanol de la Habana, a bank incorporated under the laws of the Kingdom of Spain, without the authority of the said bank. In support of the appeal it was urged

that the indictment was substantially defective because of the omission to aver an intent to de

fraud.

John H. McKinley, for applt. John Vincent, Asst. Dist. Atty., for respts.

Held, That under § 511 of the Penal Code an averment of fraudulent intent seems to be essential to such an indictment, for the acts

charged only constitute an offence when they have been committed with the intent to defraud; and without it the indictment was probably defective; and, on account of that defect, a motion might have been made in arrest of judgment. Code Crim. Pro., §§ 467 and 323, sub. 4. But, if it was designed to take advantage of this defect, the motion should have been made for that purpose before or at the time when defendant was called for judgment, Code Crim. Pro.. § 469, and since no motion was then made on that ground defendant could not afterwards complain of this defect in the indictment.

The fact that the bank mentioned in the indictment had been incor

porated was proved by a witness

who had been in the bank at Cuba

and testified to the fact of its existence, the issuing of bills by it

which were received and circulated as money, and that it was an incorporated institution; and by an engraver who had engraved the plates from which the notes of the bank were printed; but the law under which the bank had been incorporated was neither produced nor proved upon the trial; and, on that account, a motion was made for the acquittal of the defend

ant.

Held, That it was not necessary that the law should be produced. That the incorporation of the bank could legally be proved for the purposes of the trial by a witness. who might know the fact, or even by general reputation, 21 Wend., 309; 13 Ohio, 453; 15 Id., 217; and

the testimony presented was ample for the submission of the point to the jury whether such a bank as was mentioned in the indictment existed and did business as a corporation at Havana, in the City of Cuba.

Held also, That it was not necessary to prove that Cuba is a de

undivided half of the premises, and performed the services agreed upon, which involved the title to said premises, Held, That the agreement was champertous under 2 R. S., 288, § 72, prohibiting attorneys from advancing moneys, etc., as consideration for placing a debt, demand, etc., in their hands for collection, and that the deed was therefore void, and possession of the property therein referred to could not be recovered by the attorney thereunder.

and subject to its government, for those are facts which are generally accepted and known, and courts will generally take judicial notice of whatever ought to be known within the limits of their jurisdiction. 1 Greenleaf Ev., 7 Ed., § 6; 43 Barb., 225; 41 N. Y. 397; and that the court may act upon its own knowledge of the existence of foreign governments seems to be practically assumed by b. subdivision of § 511 of the Penal Code upon which this indictment was presented.

maintenance does not exist in this State, except as preserved by the Statutes. Appeal from judgment dismissing the complaint.

Action to recover possession of an undivided half of premises conveyed by a quit-claim deed given to plaintiff, an attorney at law, by defendant Callan. Plaintiff under the same date delivered to defendant Callan his agreement to render for said defendant all necessary legal services to secure him the title to the entire premises and to save him from the payment of

given as advance payment for such professional services and the immunity from expenses. The services were rendered and involved title to the realty described in the conveyance and agreement.

After the evidence was in the Court dismissed the complaint on

TERM.

made under an illegal agreement

Decided Jan. 21, 1884.

Where an attorney agreed to perform all legal services necessary to secure his client legal title to certain premises and to save him harmless from all expense, etc., and at the same time, as consideration and advance payment therefor, received a deed of an

Scott Lord, for applt.

J. Adolphus Kamping and D. McAdam, for respts.

Held, That the agreement and the deed were void, the latter being in contravention of the statute

John E. Bowers, for plff.
Geo. P. Andrews, for deft.

Held, That the judgment must be for plaintiff. Plaintiff is not an officer of the Mayor, etc., of the City of New York. 62 N. Y.,

160.

The Statute, $59, is not to be broadly construed, because its effect is to restrict the exercise of private rights by restraining a class of persons from becoming interested in the performance of contracts, work, etc., in which by general law all persons may engage. It might be said further that the District Attorney is a county officer, and the funds raised and set apart for the expenses of his office are to pay the liabilities of the county and not of the city, and that the inhibition of the act does not extend to this case, as legally speaking the payment is not made out of the city treasury. Judgment for plaintiff. Opinion by Davis. P, J.; Daniels and Brady, JJ., concur.

An extra allowance cannot be granted in such a proceeding.

Appeal from order directing the proceedings to be discontinued on payment of $188.24 costs and expenses of the land owner.

Commissioners to appraise damages were appointed, who made an award August 2, 1882, of $39,000 as compensation to be paid to the land owner. On September 6, 1882, the company gave notice to the land owner that it abandoned the proceeding, but stated no ground therefor. The report of the commissioners was not filed, and no order of confirmation was granted.

The affidavits used on the motion to discontinue were conflicting on the question of the good faith of the company in abandoning the proceeding.

Richardson, Adams & Mann, for applt.

Francis Kernan, for respt.

Held, That the company had power to abandon and discontinue its proceedings. It has been held in numerous cases that the proceedings are incomplete, and that no right in the company to the land vests, or in the owner to the compensation awarded until the report is filed and an order granted by the court confirming the award and an order made directing the payment of the amount. 3 Sandf., 691; 78 N. Y., 56; 60 id., 319; 8 Hun, 34, affd. 67 N. Y., 245; 63 id., 136; 56 id., 156. See also 2 R. S., 7th ed., 1552 and cases noted.

That the provisions of the amendment of 1876 to $ 18 of the railroad act, Chap. 198, Laws of 1876, do