before the jury as competent evidence; and, in that view of the case, it was not error to allow the comparison of the signatures by the witnesses, within the rule laid down by this court in the cases of Pierce v. Northey, 14 Wis. 9, and Hazleton v. The Union Bank, 32 Wis. 34-47.

Upon the real issues made by the pleadings there was evidence upon both sides. Upon the part of the plaintiff there was abundance of evidence to sustain the verdict upon all the grounds complained of. The note itself was presumptive evidence of a sufficient consideration, and in addition to that the plaintiff testified that the note was given for the purchase price of sheep and wood sold by him to the defendant. Upon the issue of fraud in obtaining the note no evidence was given. by the defendant, he insisting that he never gave the note at all. Upon the question of the alteration appearing on the face of the note the plaintiff swore it was made before it was signed by the defendant, and there was no evidence to contradict his testimony on this point, unless the evidence of the defendant that he never signed the note in any shape can be considered as contradicting that evidence; and, upon the question of the signature of the defendant, if it had been in issue in the case, there was certainly as much evidence in favor of its genuineness as there was on the other side.

We are unable to understand how the statute of frauds can be invoked by the defendant as a defence to his note. We have carefully examined all the points taken by the learned counsel for the defendant, the instructions asked by him and refused by the court, and the instructions given by the court and excepted to by the defendant, and are unable to find any error which has intervened to the prejudice of the defendant. On the whole record we are unable to say that the verdict is not sustained by the evidence; and, the jury having found against the defendant, their verdict must stand.

Judgment of the circuit court is affirmed.

WILLIAM J. DURBIN, Appellant, vs. JACOB VAN VECHTEN
PLATTO and others, Respondents.

Filed November 6, 1879.

So much of chapter 181 of 1872 as authorizes an action to foreclose a tax certificate is valid; and in such action the complaint need not set out the proceedings antecedent to the certificate, nor allege that no proceedings at law for the same purpose have been taken.-[STATE REP.

Appeal from Milwaukee county court.

Johnson, Reitbrock & Halsey, for appellant.

J. V. V. Platto, for respondents.

ORTON, J. This is a proceeding to foreclose a tax certificate under section 1, c. 181, Laws of 1872. This section provides for such foreclosure, "as in the case of a mortgage," and "that all the rules of law and practice relating to the foreclosure of mortgages by action, as to the persons necessary and proper to be made parties to such actions, the decree of sale and foreclosure therein, the rules of pleading and evidence therein, the right of the plaintiff to be subrogated to the benefit of all liens upon the premises," etc., shall prevail.

These provisions sufficiently answer the point of no notice being alleged in the complaint, for the proceeding has to be commenced by summons, and other proper notices are to be given if necessary to affect other parties, as in foreclosure; and in such a foreclosure the proceedings antecedent to the certificate of sale need not be set out, any more than the transactions of the parties antecedent to the mortgage, and which resulted in the giving of the mortgage, need to be set out in a complaint for the foreclosure of such mortgage.

This is the only law which authorizes the bringing of any action, either legal or equitable, to establish and enforce a tax certificate and obtain the legal title of the lands, and this remedy is "in lieu of taking a tax deed," and it is therefore unnecessary to allege that no proceedings at law for such purpose had been commenced, or that there is no adequate remedy at law.

The only question remaining is as to the constitutionality. of the statute authorizing this proceeding. It is not perceived in what respect this statute affects unfavorably the rights of the owner of the lands. It extends the time of redemption, and admits of all possible defences to the foreclosure by reason of any antecedent illegal proceedings in the assessment and taxation, and finally bars and forecloses the equity of

redemption. It is contended that the statutory proceeding is liable to the same objection of the proceeding to foreclose a street commissioner's certificate under section 3, c. 338, of the Local Laws of 1856, which is condemned in Smith v. Van Dyke and others, Adm'r of Rogers, 17 Wis. 208. In that case there would have been two tax sales-one to the city, which had bid in the lands for the special assessment, and the other to the plaintiff under his decree, and these two antagonistic, and none of the reasons given in that case are applicable to this; and the same may be said of the subsequent case of Smith v. Ludington et al. Id. 334. Here there is but one tax sale. as such, and this proceeding, "in lieu of taking a tax deed," is a cumulative remedy to establish and enforce such tax sale, and foreclose the equity of redemption. We think this statute is valid and the complaint sufficient.

The order of the county court sustaining the demurrer to the complaint is reversed, with costs, and the cause remanded for further proceedings according to law.

Filed November 6, 1879.

1. The rule in this state is, that, for the purpose of determining whether a paper offered in evidence is in defendant's handwriting, the jury may compare it with other documents already admitted in eridence upon other grounds, and shown to be in his handwriting; but that such a paper cannot be put in evidence for the mere purpose of such a comparison.

2. On trial of an indictment it appears that police officers, while questioning defendant as to his participation in the crime charged, repeated orally to him the words of a letter supposed to have been written by him. containing threats of such crime; and that defendant, in their presence and at their request, wrote on another paper the same words. Said officers, while testifying at trial to the admissions of defendant at such examination, produced such copy, and it was received in evidence and submitted to the jury for comparison with the original letter. Held, that it formed no part of defendant's admissions; and not being admissible for any other purpose than that of such comparison, it should not have been received for that purpose under the foregoing rule.

3. Arson not being in general a crime of like nature and intent with forgery or larceny, in the trial of an indictment for arson proof that defendant had been guilty of forgery and larceny is not admissible unless accompanied by evidence that the latter crimes and the one charged had a common purpose, or that one was committed to conceal the other.[STATE REP.

Milwaukee municipal court.

J. C. McKenney and Attorney General, for the state.
James Hickcox, for defendant.

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ORTON, J. It appears to us that the principle and correct rule by which the admissibility of the evidence received and involved in the two questions reported is to be determined, and the true grounds of their application to a given case, have been clearly established by previous decisions of this court, and it will therefore be profitless to review the great multiplicity of decisions of other courts which recognize the same rule, and differ only in its application.

The questions propounded by the learned judge who tried the case are-First, did the court err in permitting the letter written by the defendant in the police station, after he was arrested, to be admitted in evidence and given to the jury? second, did the court err in admitting testimony to show that the defendant had been guilty of forgery and larceny?

As to the first question, it was in proof that the defendant was being examined and questioned generally by the police officers, concerning his participation in the crime charged, and a letter supposed to have been written by him, containing threats of arson, was orally and verbally repeated in his hearing, and he was requested to write and did write on another paper the same words, in the presence of such officers, and the original letter so repeated contained words of peculiar form, style and orthography, and the copy so made was in these respects a fac simile of the same; and such officers, as witnesses on the trial, produced such copy, while testifying to the admissions of the defendant in such examination, and it was received in evidence and submitted to the jury, for the purpose of comparison with the original letter, and determining thereby the authenticity of the same.

The act of so copying the original letter could not, by the most liberal construction of language, be considered and treated as any part of the oral and verbal statement or admission of the defendant, elicited upon such examination. It was an independent act and fact, which had nothing to do with this oral statement or admission, which, to be evidence, must have been voluntary, and made understandingly, and repeated in the same language, if possible. But if language could be so liberally construed for the state, and so illiberally construed for the defendant, as to make such act of copying a part of the oral statement by being connected with it, even then it would not be the province or right of the prosecution to prove it on the ground that the whole of such statement. must be given if any of it; but the defendant alone had the

right to demand such testimony, if he chose to exercise it, on such ground. 1 Greenl. Ev. §§ 201, 202.

If such an act of copying a letter, at the dictation or request of a witness, can be treated and admitted in evidence as a part of his oral confessions, then such an act would be admissible if it constituted the whole of such confession, and a fact might thus be proved as a confession or admission which could not be proved in any other way, and any other proof of which would be incompetent. It will not be contended that it would be proper to prove that the defendant actually wrote the copy for the purpose of introducing it in evidence to convince the jury by comparison that he also wrote the original, unless such copy is already in evidence for some other purpose.

It must be held, therefore, that such copy was not properly in evidence as a writing or paper with which the original letter could be compared by the jury upon the question of its authorship. The true rule in such cases is: "The jury may form their opinion as to the genuineness of a document by a comparison of it with any other documents already in evidence before them, and shown to be the genuine production of the person whose handwriting is in question." Roscoe's Crim.

Ev. 5. This was the English rule until changed by statute of 28 Victoria, and is the rule adopted by this court, and will be unless changed by our own legislature.

The rule, as stated by this court, is explicit that such a comparison will not be allowed except with writings "clearly proved and already in the case, and before the jury for some other purpose." Pierce v. Narthey, 14 Wis. 9; Hazleton, Adm'r, v. The Union Bank of Columbus, 32 Wis. 34.

The first question must therefore be answered in the affirmative.

As to the second question there may have been other evidence than that which appears in the report, showing the intimate relation between the crimes of larceny and forgery, confessed or proved, and the crime of arson in the information, as to their common design, purposes and intent, for it is not certified that the report contains all of the evidence.

It is not perceived, however, from the evidence which is reported, how these crimes have any such relation to each other. The object of such testimony, when admissible, is not to prove the act, but the purpose and intent with which the act is done, and, therefore, other crimes of like purpose and intent may be proved, as being in such intimate relation with v3—3 (no. i)

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