Cramer's direct testimony that it was worth $50 to straighten up the books. He did not swear that he received that or any other sum for this service. His further testimony is that he is the book-keeper of the hotel, having entered the employment of the defendant on November 1st, being the next day after plantiff left; that he has been there constantly ever since; and that it did not take him long to remedy the defects of the books. There is nothing to show that this work interfered with the full performance of the duties of his employment, or that any extra compensation was paid or contracted to be paid on account of this special work. For aught that appears it was considered as attaching to his legitimate duties under the general engagement. It is therefore unnecessary to discuss any of the legal questions which have been raised. If it be conceded that defendant would be entitled, upon a proper showing, to set off damages sustained against the plaintiff's demand, he has proved no damages. The judgment will therefore be affirmed.

There is no form prescribed for claiming exemption by defendant in attachment cases; it may be done orally in justices' courts. If made by affidavit, no notice of the filing is required to be given.

To first traverse the attachment on other grounds before claiming exemption, is no waiver of the right to claim the property as exempt under the statute. Upon appeal in the circuit court the case stands as it stood in the justice's court, and the claim of exemption is to be passed on like any other defense.

To resist the claim of exemption, the defense that the suit was for part of the purchase price of the exempt property cannot be made for the first time in this

court.

An assignee of a note is the real "party in interest," though the consideration of the assignment be payment to the assignor after recovery in the suit by the assignee. An objectionable instruction, not prejudicial to the party objecting thereto, is not ground for reversal.

Error to county court of Saguache county.

E. F. Allen and Geo. P. Uhl, for plaintiff in error.

Clarence P. Lott, for defendant in error.

STONE, J. The principal ground of reversal relied upon by the plaintiff in error is the dissolving of the attachment sued out by the plaintiff below, who is the plaintiff in error here. The objection to the action of the court in dissolving the attachment is based upon the following reasons, to-wit:

"(1) That the affidavit claiming exemption is insufficient. (2) Because there was no notice given to the plaintiff of the filing of the affidavit claiming exemption. (3) Because the claim of exemption, if any ever existed, was waived. (4) Because the court had no jurisdiction of this matter, the same not having come up on appeal, and that, therefore, the court erred in dissolving the attachment."

These alleged reasons are insufficient to support the objection urgeḍ. There is no prescribed form for making such claims of exemption, and it might have been made orally in the justice's court. It was made in the form of an affidavit by the defendant in the attachment, describing the property as the span of mules and harness taken under the attachment writ, and claiming them as exempt under the statute. No notice of the filing of this affidavit was necessary, any more than in making any other defense which the defendant was entitled to make to the action. The notice referred to in section 12 of the attachment act of 1879, applies to cases of claimants of the property other than the defendant in the suit, usually called intervenors. The proceedings mentioned in section 13 of said act refer to the mode and manner of trying the question of the right of exemption claimed when an issue is made thereon. The ground of the alleged waiver of the exemption is that the defendant first traversed the attachment upon other grounds, and afterwards filed his affidavit claiming the exemption as a separate ground for dissolving the writ. This was no waiver of the right of defendant to claim the property as exempt under the statute. The jurisdictional objection is without force. Upon appeal in the county court, the case stood just as it existed in the justice's court, and the trial in the county court was de novo, when the defendant's claim of exemption was to be passed on the same as any other matter of defense made in the case.

It is said by counsel for plaintiff in argument that the testimony in the record shows that one of the items sued for was a balance due for the purchase price of the mules attached in the suit, and hence that, had the court allowed a proper issue to be made upon the claim of exemption, the plaintiff would have succeeded in resisting said claim. It is questionable if this point is properly raised under any of the assignments of error; but even if it is, we think it unavailing to plaintiff here, for the reason that he failed to make this point in the court below. The only ground upon which the plaintiff resisted the claim of exemption in the court below, when the motion to dissolve the attachment upon the ground of the exemption was before the court, were the four specific grounds which we have hereinbefore set out and discussed, and the plaintiff having failed to present, in the court below, the fact that a part of the debt in suit was the purchase price, or a portion thereof, for the property attached, as against the statutory exemption claimed, must be held to have waived this ground of objection to the motion, and cannot raise it for the first time in this court.

The plaintiff, as assignee of the note and account sued upon, was "the real party in interest," within the meaning of the Code of Civil Procedure, even though the consideration of the assignment may have been a payment to the assignor after recovery in the suit by the assignee. Cummings v. Morris, 25 N. Y. 625; Meeker v. Claghorn, 44 N. Y. 349; Caulfield v. Sanders, 17 Cal. 569. The jury were properly instructed upon this point by the instructions given on behalf of plaintiff. The third instruction given on behalf of defendant, the giving of which is made a ground of error in the assignments, was inconsistent with that given upon the same point on behalf of plaintiff, and was also inconsistent with the facts to which it was intended to apply, and therefore objectionable; but that the plaintiff was not prejudiced thereby is evident from the verdict rendered in. his favor, in accordance with the instructions given on his behalf. This is none the less evident from the fact that the verdict was for a less amount than that sued for, since a large item in the account for the potatoes delivered to defendant was in dispute, and the testimony relating thereto directly contradictory; and as the jury were the judges of the credibility of the witnesses and the weight to be given to their testimony, we cannot say that the verdict was unwarranted, and the judgment of the court below will be affirmed.

The second clause of section 775, Gen. St., under which this indictment for forgery is drawn, expresses the intent constituting the offense, and the omission of the words "falsely and feloniously" is not material.

An indictment stating the offense in the terms and language of the Code, or so plainly that it may be easily understood by the jury, is sufficient.

Though the indictment does not charge the passing or uttering of the forged note, testimony thereof is admissible to show the intent with which the handwriting was forged.

An instruction to find the defendant guilty if he signed another's name to a note to procure money thereon, and did procure it, is erroneous; the intent to damage or defraud some person thereby is essential.

Error to district court of San Juan county.

H. O. Montague, H. B. Wilson, and Sam. Slessinger, for plaintiff in

error.

D. F. Urmy, Atty. Gen., for the People.

STONE, J. The plaintiff in error was tried and convicted in the court below upon the following indictment:

"The grand jurors selected and sworn within and for the county of San Juan, in the name and by the authority of the people of the state of Colo

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rado, upon their oaths present that M. K. Cohen, late of the county of San Juan aforesaid, on, to-wit, the third day of January, 1882, at the county of San Juan and state aforesaid, did counterfeit and forge the handwriting of another, to-wit, Lawsha Brothers, to a certain promissory note of the date of January 3, 1882, for the sum of $460, with the intent to damage and defraud the said Lawsha Brothers and Heffron & Johnson, and against the statute in such case made and provided, and against the peace and dignity of the state of Colorado."

Numerous errors are assigned as grounds for reversal of the judgment, only a few of which it is necessary to notice. The indictment is objected to as insufficient, for the reason that it fails to set out a copy of the instrument upon which the forgery is predicated, and because the act is not charged to have been done "falsely" and "feloniously." The first clause of the statute upon which the indictment is founded declares that "every person who shall falsely make, alter, forge, or counterfeit any record, promissory note,

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or

every person so etc. Gen.

*" etc.; while the latter clause is as follows: shall counterfeit or forge the seal or handwriting of another, with intent to damage or defraud any person, offending shall be deemed guilty of forgery, St. § 775. This indictment is drawn upon the latter clause of this section of the crimes act, and, as is seen, is framed in the language of the act, and hence it was not essential to use the words "falsely make," or to set out the instrument as might possibly be required under the definition of the crime in the first clause, nor was the use of the word "feloniously" necessary. This term is employed in charging a felony for the purpose of denoting the intent with which the act is charged to have been done. The clause of the act under which this indictment is framed expresses the intent necessary to constitute the offense, and hence renders superfluous the use of the term "felonious." Besides, forgery was a misdemeanor at common law; the term "felonious" being alleged only in respect of crimes denominated felonies, which deprived the accused of the benefit of clergy upon conviction; and for this reason it has been held by the courts of several states that the term "felonious" need not be used in indictment for forgery, especially in states where, by statute, it is provided, as in this state, (section 925, Gen. St.,) that "every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense may be easily understood by the jury." Miller v. People, 2 Scam. 233; Quigley v. People, Id. 301; Butler v. State, 22 Ala. 43; Jane v. Com. 3 Metc. (Ky.) 18; Peck v. State, 2 Humph. 77; People v. Olivera, 7 Cal. 403; Whart. Crim. Law, §§ 399, 400, 1419.

It is also assigned in error that the court admitted testimony as to the uttering or passing of the instrument forged, since such passing of uttering was not charged in the indictment. There was no error in this; for, the indictment having charged the offense under that

clause of the statute expressing the particular intent constituting the criminal ingredient of the act, it was proper to show that the accused uttered or passed the instrument for the purpose of raising money thereby, in order to show the intent with which the handwriting in question was forged. This, at least, was one mode, and a proper one, of establishing, or tending to show, the particular intent expressed in the statutory definition of the offense. Whart. Crim. Law, § 1453b. There was no error in the refusal of the court to give the several instructions numbered 1, 2, 3, and 4, prayed on behalf of defendant.

The only instructions given by the court to the jury were the two following, the first on behalf of the people, and the second on behalf of the defendant,-to-wit:

"If the jury believe from the evidence that the defendant signed the name of Lawsha Brothers, in San Juan county, Colorado, to the note for $460 in evidence, with the intention of obtaining money thereon, and did obtain money thereon, you will find the defendant guilty as charged in the indictment.

"The jury are further instructed that before they can convict the defendant they must be satisfied, beyond a reasonable doubt, that he is guilty of the crime charged against him in the indictment; that such doubt must be reasonable and not captious; and that if the jury have any such reasonable doubt they must acquit the defendant."

The first of these instructions is not merely defective; it is palpably erroneous. It assumes to define the offense; to declare what facts establish the defendant's guilt; and in this it does not state the law of the case. It is scarcely necessary to remark that the facts thus stated, if true, would not necessarily constitute an offense under the statute, for one person may be authorized to sign the name of another. The statute makes the offense to consist in the forging or counterfeiting the handwriting of another, with intent to damage or defraud some person. Under the two instructions given the jury were, in effect, directed to return a verdict of guilty, if they believed, beyond a reasonable doubt, that the defendant signed the name of another to a promissory note, intending to procure money, and procuring the same thereby, without instructing them that they must also believe that such signing was forged or counterfeited, and with intent to damage or defraud some person. The mere intent to obtain money on the note was immaterial; it was the unauthorized signing with intent to damage or defraud another which made the act a crime under the definition of the statute. It cannot be said that the plaintiff in error was not prejudiced by such a plain misdirection to the jury, and with no other instruction to modify or cure it.

For this error the judgment must be reversed, and the cause remanded.