#### Pierce vs. Northey.

A party denying the signature to a paper, cannot, upon *the*cross-examination of witnesses who have testified that they know his hand-writing and believe the disputed signature to be his, show them papers purporting to be signed by him, the genuineness of which has been neither admitted nor denied, and ask them whether they believe the signature to such papers to be his, for the purpose of impeaching their credibility by their disagreement upon that point, or if they answer in the affirmative, by afterwards showing that the signature thus exhibited was written by another person.

Where a complaint professes to give a complete copy of the note sued upon, and the note produced on the trial is different from that described in the com plaint, the defendant may show that the note has been altered, so far as such difference exists, since its execution, although the execution of the note was not denied in the answer.

The application of a defendant, after verdict, to increase the amount demanded in his counter-claim, so as to correspond with the amount found by the jury, should be denied; or if allowed, should be upon condition that he relinquish the verdict, pay the plaintiff’s costs of the trial, and submit to a new trial.

Costs which a party is compelled by an order of a court to pay as the condition of opening a judgment which has been rendered against him, cannot become a ground of action or claim against the party by whom the costs were received.

EBROR to tbe Circuit Court for *Walworth*County.

*Pierce*entered up judgment in vacation, against *Northey,*under a warrant of attorney, upon four notes. In tbe body of each note was a memorandum stating that tbe defendant bad deposited with tbe plaintiff a quantity of grain, as *10*security*for its payment, with power of sale, &c.; and the judgment was for $223, tbe balance claimed to be due after deducting tbe proceeds of tbe grain. Tbe memorandum as to tbe deposit- of tbe grain was *omitted*in tbe copy of eacli of tbe notes contained in tbe complaint. Upon the application of *Northey*tbe judgment was opened, and be was allowed to file an answer to tbe complaint, denying tbe execution of one of tbe notes, wbicb was for tbe sum of $422, and alleging that be bad delivered grain to tbe plaintiff of tbe value of $250 more than the amount of tbe other three notes, and demanding judgment for that sum. Reply in denial. On tbe trial, tbe plaintiff called several witnesses, who testified that tbe signature to tbe note of $422 was in tbe defendant’s band writing. On cross examination, sundry slips of paper were banded to these witnesses, and they were asked if tbe name “Gilbert Northey,” written upon them, was in tbe band writing of tbe defendant. Tbe plaintiff objected to tbe introduction of tbe slips and to tbe question, but tbe court overruled tbe objection. Several of tbe witnesses answered that they bad no doubt tbe signatures on tbe slips were in tbe bandwriting of tbe defendant; others, that some of them were not in tbe defendant’s bandwriting. *Northey,*as a witness in bis own behalf, then testified that be never signed tbe note in controversy, and that tbe signatures on the slips were not in his bandwriting, but were copied, in bis presence, from bis genuine signature, by means of colored impression paper. Tbe witness was also asked by bis counsel, if tbe memorandum in each of tbe other notes as to tbe deposit of grain as security, was there when be signed them. This question was objected to, on tbe ground that tbe defendant bad not denied tbe execution of the other notes, but tbe objection was overruled, and be answered tbe question in tbe negative. Tbe jury were permitted, against tbe objection of tbe plaintiff, to take tbe slips that bad been exhibited to tbe witnesses on cross-examination, to examine in considering of their verdict. Verdict for tbe defendant for $365 ; but it was admitted in tbe bill of exceptions, that tbe jury bad included in tbe verdict $80 costs, wbicb tbe defendant bad been obliged to pay as a condition of opening *11tbe judgment entered under tbe warrant of attorney. After tbe verdict was returned, tbe defendant moved tbe for leave to amend bis answer and counter-claim by increasing tbe amount demanded to $365, so as to correspond witb tbe verdict, and leave was granted, tbe plaintiff excepting. Tbe plaintiff moved for a new trial, producing tbe affidavits of two of tbe jurors, tbat $80, costs above referred to, were included in their verdict; but this motion was overruled. Judgment on tbe verdict.

*Winsor*& Smith, for plaintiff in error,

as to tbe inadmissibility of tbe signatures upon tbe slips, cited 2 Phil. Ev., 8d ed., 257; *Griffits vs. Ivery,*11 Adolpb & El., 322 ; *Hughes vs. Rogers,*8 Mees. & Wei., 123; *Doe vs. Newton,*5 Adolph. & El, 514; *Jackson vs.*Phillips, 9 Cow., 94; *Odiorne vs. Winlcley,*2 Grail., 53; *Van Wyck vs. McIntosh,*4 Kern., 439. Tbe court erred also in allowing tbe defendant to amend bis answer, without allowing tbe plaintiff a new trial as a condition of tbe amendment. 3 Wend., 356 ; 7 id., 330 ; 7 Wis., 211; 2 Seld., 97.

*H. S. Murphy, contra,*

as to the admissibility of the evidence objected to, cited *Horner vs. Wallis,*11 Mass., 309; *Moody vs. Rowell,*17 Pick., 490; *Richardson vs. Newcomb,*21 id., 315; *Hammond's case,*2 Greenl., 33 ; *Lyon vs. Lyman,*9 Conn., 55 ; *Young vs. Honner,*Car. & Kir., 51; 2 McLean 6 Rob., 536; S. O., 1 Greenl. Ev., §449. The variance between tbe amount claimed by defendant in his answer, and the amount proven, was not material, as the plaintiff could not have been misled by it. Code, 77. The $80 costs were properly included, as the expense was incurred in setting aside a fraudulent judgment; but if the court should think otherwise, counsel offered to enter a *remittitur*for that sum.

May 15.

*By the Court,*

DixoN, C. J.

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-*12more Pr°perly the question, whether the party denying the signature may, upon the cross-examination of witnesses who have testified that they know his handwriting and believe the signature to be genuine, lay before them papers purporting to have been signed by him, the genuineness of which is neither admitted nor denied, and ask them whether they believe the signature to be his, for the purpose of testing their knowledge of his handwriting, by the agreement or disagreement of their testimony on this point; and whether the papers thus laid before the witnesses may go to the jury in order to enable them, by a comparison of hands, to determine the question in dispute. Upon the question thus narrowed, we believe the decision of the court below is not sustained by a single authority, English or American. On the contrary, it is opposed by the adjudications of the English courts in all cases where the question has been directly made. It was made in *Griffits vs.*Ivery, 11 Adolph. & Ellis, 322, (39 E. C. L., 104), and *Hughes vs.*Rogers, 8 Mees. & Wel., 123, and it was there held that such papers were inadmissible. They were excluded on the ground that the admission of them would have the effect of raising a multiplicity of collateral issues; that it would be impossible to keep from the jury questions whether this or that paper was or was not written by the party. We find no American cases in which the question has been raised and decided. A still better reason for the exclusion would perhaps be, that if they were generally admitted, the opposite party would often be taken by surprise. He would be unprepared, in case he were disposed and able to do so, to establish either the authenticity or the falsehood of the signatures, by a comparison with which it was proposed to test the genuineness of that which was denied. And another and more cogent ground of objection would seem to be, that it would open the door to great frauds and unfairness in the selections to be made. Experiments might be tried and selections made for the very purpose of tricking and deceiving the witnesses and the jury. No better exemplification of the force and correctness of this ground of objection could be found than that furnished by the facts of the present case. *13Tbe papers offered were mere slips, having upon them tbe name of tbe party only, and these names were copied others, from his genuine signature, by means of colored ini-pression paper. They were, of course, fac similes of the genuine, and because the witnesses testified that they believed them to be genuine, other witnesses were introduced to show that they were not, and thus to impeach their knowledge and credibility. A more naked and wanton trick, devised to entrap and impose upon the witnesses and jury, could not well be imagined; and although it was exposed in this instance, it shows the danger of receiving such papers in evidence.

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*14tion does not arise. We may however, be permitted to say in passing, that the reasoning in the case of *Moody vs. Rockwell, 17*Pick., 490, and *Adams vs. Field,*21 Vt., 256, which are the only ones in which the practice of admitting writings not otherwise competent, for the mere purpose of a comparison of hands, is attempted to be vindicated as correct in principle, seems not to reach the most obvious and strongest point of objection. Nothing is said about the principal ground upon which the English and other cases rest, which is the multiplicity of issues which must arise and be disposed of in admitting these collateral and otherwise immaterial writings. Neither do they speak of the danger of surprise to the other party, who may not know what papers are to be introduced, and therefore may be wholly unprepared to meet and repel the inferences attempted to be drawn from them. After stating the English rule and remarking that it permits the court and jury to compare the contested signature with the genuine signature of the same party when the latter is properly in evidence for another purpose, Chief Justice Shaw, in the first named case, says: “ But it seems to be difficult to distinguish in principle between the case of a paper admitted and proved to be genuine, given in evidence for another purpose, and a paper the genuineness of which is equally well established, when offered for this express purpose. In both cases the result depends upon skill and judgment in making the comparison, and discovering the resemblances and differences.” Now all this may be true, and it may even be admitted that this method of enabling the court and jury to exercise their skill and judgment, is more satisfactory than that which compels them to depend upon their memory of the evidence given; and in the case of witnesses it may be said to be a surer test of their skill and experience, to allow them to have a genuine signature before them with which to institute a comparison, than to oblige them to compare a writing in respect to which they are examined, with the character of the handwriting impressed upon their minds by means of having seen the party write, or having corresponded with him, or having, in the course of business, received and examined *15authentic documents executed by him; yet the consideration of these advantages does not remove the difficulties have been suggested as being in the way of placing such genuine writings before the jury and witnesses. In the case of papers which are properly in evidence for other purposes, no such difficulties exist. As to all such it is to be presumed that the party is aware that they exist and will be produced, and if he has any objections he is supposed to come prepared to make and sustain them.

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 *16amendment, without these conditions, would be improper, the opposite party would have no opportunity of reducing the damages, which on the trial he had no occasion to do by reason of the moderate amount claimed against him. 4 Wend., 362; 7 id., 330; 2 Seld., 105. These reasons apply as well to the amount of the judgment demanded upon a counter-claim as to that claimed by the plaintiff in his complaint; for, as to such counter-claim, the defendant becomes in reality the complaining party, and is bound to state the amount of his damages as much as if he were plaintiff.

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.