14 Wis. 9 | Wis. | 1861
By the Court,
Strictly speaking, the exceptions taken do not present tbe question, whether in case of a disputed signature tbe genuine signature of tbe same person to a paper not otherwise competent evidence in the case, is admissible to enable tbe court and jury, or tbe witnesses, by a comparison of bands, to determine or form an opinion upon the genuineness of the signature in dispute. They pre-
The American cases cited by the counsel for the defendant in error, go no farther than to hold that documents, the genuineness of which is admitted, or established by clear, direct and positive testimony, and which are not otherwise in evidence in the case, may be permitted to go to the jury for the purpose of comparison of handwriting. This is the rule in most of the New England states. 11 Mass., 809; 17 Pick., 490; 21 id., 815 ; 2 Oreenl., 83 ; 9 Conn., 55; 21 Yt., 256; 3 N. H., 47. In other states, the mere unaided comparison of hands is inadmissible, but such testimony is received where some evidence of handwriting has been given, as corroborating testimony. 6 Whart., 284; 7 Barr, 495; 1 McMullan, 120; 2 McCord, 518. On the other hand, in England and in many of the states, a comparison of hands by juxtaposition of two writings is held to be wholly inadmissible, either as primary and sufficient or as corroborating evidence, except when the writings are of such antiquity that they cannot be proved in the ordinary way, or where the other writings, clearly proved, are already in the case and before the jury for some other purpose. Griffits vs. Ivery, and Hughes vs. Rogers, supra; 1 Crompt. & Jer., 47; 8 Vesey, 473; 4 Esp., 117; 4 Carr. & Payne, 1 (19 E. C. L., 247); 5 Barn. & Ald., 330 (7 E. C. L., 118); 9 Cow., 94; 5 Hill, 182; 1 Denio, 343; 2 Ala., 703; 5 id., 748; 1 Iredell, 16; 1 Dana, 178; 7 B. Mon., 269; 19 Ohio, 426. It is unnecessary for us in this case to express any opinion as to which of these is the better rule. That ques
In Adams vs. Field but one reason formerly assigned in England for the exclusion is noticed, and that such as no longer exists, either in that country or this. It was that the jurors could not read nor write, and were therefore incompetent to compare handwriting. These cases, therefore, would seem not to furnish any very satisfactory reason for departing from the English rule.
It cannot be said that the court was wrong in allowing the defendant to give evidence for the purpose of showing that the three last described notes had been altered by inserting in them the memoranda that they had been collaterally secured by the deposit of wheat and barley with the plaintiff in error. Upon examining the complaint it appears that these memoranda are entirely omitted, although it purports to contain complete copies of the notes. Under these circumstances, the defendant’s failure to deny their execution as therein alleged, cannot be construed as an admission that the stipulation with regard to the grain was embodied in them at the time they were signed. He only admitted their execution in the manner and form in which they were set out in the complaint.
The application of the defendant, made after the verdict, for leave to aménd his answer, by increasing the sum for which judgment was demanded against the plaintiff upon his counter-claim, from $248 50 to $365, the amount found by the jury, should have been denied; or if allowed, it should have been upon the condition that the defendant would relinquish the verdict, pay the plaintiff’s costs of the trial, and submit to a new trial. This was the rule before the Code, and the reasons for it still exist. They are that such
We need not consider whether the affidavits of the jurors were admissible for the purpose of showing that in their assessment of the defendant’s damages, they included the costs which he had been ordered to pay as the condition of opening the judgment entered upon the warrants of attorney and allowing him to come in and answer. The parties concede that such was the case, as appears by the bill of exceptions ; and for this reason, if for no other, the court should have granted the plaintiffs motion for a new trial. It cannot be claimed, under any circumstances, that costs thus unconditionally directed to be paid, can become the subject of an action against the party by whom they are received.
Judgment reversed, and a new trial awarded.