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-[12] more 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. [13] Tbe 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.
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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-[12] more 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. [13] Tbe 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[14] tion 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 [15] authentic 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 [16] amendment, 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.