Carroll vs. Bohan. defendant's favor. The nature of the action, and the errors constituting the ground of decision here, are sufficiently stated in the opinion. Brief for the appellant by Jenkins, Elliott & Winkler, and oral argument by Mr. Jenkins. To the point that the judgment should at least be reversed for the defects of the special findings, they cited Heeron v. Beckwith, 1 Wis., 17; Eldred v. Oconto Co., 33 id., 133; Young v. Lego, 38 id., 206; Hutchinson v. Railway Co., 41 id., 552; Seward v. Jackson, 8 Cow., 406. Brief for the respondent by Rogers & Hover, and oral argument by Mr. Hover. As to the question divided, they con: tended that the finding was in substance that the minds of the two parties never met upon the question whether the mortgage should include the entire stock. As to the hypothetical finding described in the opinion, they argued that it was sufficient when taken in connection with the pleadings (Elsemann v. Swann, 6 Bosw., 698; Barto v. Himrod, 8 N. Y., 483; 9 Wend., 611, 625; 8 Cow., 406), including a schedule attached to them, as these show that there was no general assortment of plumber's goods from which the particular goods mortgaged were to be selected. RYAN, C. J. This action was trespass de bonis asportatis. The defendant below, appellant here, justified under a chattel mortgage of the plaintiff below, respondent here. Some of the goods actually in controversy appear not to have been in the mortgage. And the appellant, claiming that they should have been, put in with his answer a counter claim in equity for the reformation of the mortgage, to include goods in controversy omitted from it. The proper practice, in such a case, is to try the issue upon the equitable counter claim first; afterwards, the issue on the legal defense. Du Pont v. Davis, 35 Wis., 631. Though this rule generally rests in discretion, yet in such a case as this, it Carroll vs. Bohan. seems to be imperative. For it is difficult to understand how the legal issue of justification under the mortgage could properly be tried, until the determination in equity, what the mortgage should properly cover. But it appears by the record, that no distinction was made. in the court below between the issues at law and in equity; and that both were tried indiscriminately by a jury. The impropriety, if not error, of such practice, appears manifest upon consideration that the verdict, while it stands, is conclusive upon the court on the legal issue, and advisory only on the equitable issue. Indeed the counter claim seems to have been very much overlooked throughout. For the judgment goes upon the legal issue only, and leaves the counter claim undisposed of. This view was not taken at the bar; but we are inclined to think the error in the judgment itself sufficient to reverse it. A special verdict was ordered; and the court below submitted the matters in controversy to the jury, in the form of questions. One of these was, whether it was the understanding between the parties that the mortgage should cover the entire stock of goods in the respondent's store. The jury professed inability to answer this question as proposed, and asked permission to divide it. For reasons not apparent, the court below indulged the jury in the rare luxury of dividing an indivisible question. And so the proverbially intelligent jury answered the question, "yes," as to the appellant, "no," as to the respondent. This was severing the truth, not the question nor the answer. The ex parte yes, affirms a mutual understanding; the ex parte no, disaffirms a mutual understanding. The verdict on a material point finds for each party, and against each party; being, in effect, equivalent to disagreement of the jury. The answer assumes to cut a single and indivisible truth in two, as Solomon proposed to cut the child. No judgment can rest on such a verdict, and no court should receive it. The jury gave evidence of evasive talent, in another instance, Page and another, Ex'rs, vs. Danaher and another. in another way. They answered a question, no, upon a hypothesis, giving no answer to it upon any other hypothesis; thus leaving the court to find a fact for itself, which, being found and taken with the verdict, would or would not, as it might be found, constitute an answer to the question put to the jury. The statute providing for special verdicts is an excellent one; tending to dispel the occasional darkness visible of general verdicts. But special verdicts are worse than useless, if courts do not submit for them single, direct and plain questions, and insist upon positive, direct and intelligible answers. Indirect, evasive, uncertain or unmeaning answers should never be received. And when none other can be drawn from a jury, the verdict should not stand for a moment. Davis v. Farmington, 42 Wis., 425. By the Court.-The judgment is reversed, and the cause remanded to the court below for a new trial. PAGE and another, Executors, vs. DANAHER and another. EVIDENCE. (1) Alteration in note; when plaintiff must explain. (2) Suit by executors on note; how far defendant competent as witness. 1. Where, in a printed form used in drawing a promissory note, the words "after due," in the clause relating to interest, have been stricken out, apparently with a different ink from that used in filling up the body of the note, so that the general appearance of the instrument raises a suspicion of its genuineness, the party offering it in evidence must explain this appearance by some evidence upon which a jury might find that the words were stricken out before or at the time when the note was made. 2. In an action by executors upon a note, alleged to have been executed and delivered by defendants to plaintiffs' testator, and in which he is named as payee, but which defendants allege to have been altered after execution, one of the defendants, as a witness for the defense, might properly be asked when and with what ink he signed the note; whether he Page and another, Ex'rs, vs. Danaher and another. struck out words in the printed form which appeared to have been stricken out; and other questions which did not call for any transaction or communication had by defendants with such testator personally. Daniels v. Foster, 26 Wis., 686; Stewart v. Stewart, 41 id., 624. APPEAL from the Circuit Court for Milwaukee County. The following statement of the case was originally prepared by Mr. Justice COLE, as a part of his opinion herein: "The plaintiffs, as executors of H. L. Page, deceased, brought this action to recover the amount claimed to be due on a promissory note, dated September 13, 1872, for $2,115, given by the defendants as copartners and made payable to said Page or order, June 1st, 1874, with interest thereon at the rate of ten per cent. until paid. In the amended answer, which was verified by the defendant Melendy, it was admitted that the defendants executed the promissory note at the time, for the amount, and payable on the day and to the person stated in the complaint; but it was alleged that the note bore interest at ten per cent. after due, and not otherwise, and that after the making and delivery of the note the same was materially altered without the consent of the defendants, or either of them, by striking out the words 'after due,' thereby making the note bear interest from date. The cause was tried by the court, a jury being waived. On the note being offered in evidence, the defendants objected to the same on the ground that it appeared on the face thereof that it had been altered by striking out the words 'after due,' and that no explanation of such alteration had been given or offered. The objection was overruled, and the note was admitted in evidence. The plaintiff's then rested, and the defendants moved for a nonsuit, which was denied." The defendant Melendy, called as a witness for the defense, was asked the following questions successively, all of which were excluded by the court, on the ground that they called for transactions which occurred between the witness and plaintiffs' testator, during the lifetime of the latter: "Did you personally execute that note? Did you sign the name of Dan Page and another, Ex'rs, vs. Danaher and another. aher & Melendy to it? Did you strike out the words 'after due' from it? Were these words stricken out when you signed it? When did you first know that said note, as it then was, purported to draw interest from its date? Where and with what ink did you sign the note?" Defendants' counsel offered to prove by the witness that he signed the name of Danaher & Melendy to the note, and no other person was concerned about the matter in behalf of said firm; that he did not strike out the words "after due," and they were not stricken out, but were a part of the note, when he signed it; and that he signed it in the office and with the ink of plaintiffs' testator. The offers were rejected. Judgment for plaintiffs for the amount of the note; from which defendants appealed. For the appellants, a brief was filed by Jenkins, Elliott & Winkler, and there was oral argument by Mr. Jenkins. They argued, 1. That it is incumbent upon the party who seeks to enforce an altered instrument, to show that the alteration does not invalidate it. Chitty on Bills, 212; 1 Starkie's Ev., 178; 1 Greenl. Ev., § 564; Henman v. Dickinson, 5 Bing., 183; Sibley v. Fisher, 7 Ad. & El., 444; Jackson v. Osborn, 2 Wend., 555; Low v. Merrill, 1 Pin., 340. In the absence of all evidence to show when the alteration was made, it must be presumed to have been made subsequent to exccution and delivery. Hills v. Barnes, 11 N. H., 395; Hodge v. Gilman, 20 Ill., 437. Especially is this true where the alteration adds largely to the burden of the obligation. In a late Massachusetts case it is held, after a full investigation, that the burden of explanation rests with the plaintiff. Simpson v. Davis, 119 Mass., 269. See, also, Wilde v. Armsby, 6 Cush., 314; Ely v. Ely, 6 Gray, 439. 2. That the statute (Tay. Stats., 1600, § 74) only precludes the defendant Melendy from testifying to "any transaction or communication had personally with the deceased." Testimony to the condition of the note when he signed it, is certainly not within the letter of |