All of the exceptions taken which relate to the evidence or instructions based upon the theory that the note offered in evidence was not the identical note given, and set out in the complaint, but a copy of or a substitute for it, were immaterial to the issues formed by the pleadings. The genuineness of the note offered could only be questioned in two ways: either by the proper denial in the answer, or by objection to its introduction in evidence -when offered, on that ground. But if the paper offered as the note set out in the complaint is received in evidence without objection, and no motion is made to discard it on the ground of its being a forgery or a substitute, upon subsequent discovery, such an important question ought to be concluded, and ought not to be raised incidentally in the course of the trial, as a hypothesis or theory upon which other facts not otherwise material might be predicated. When its alteration or want of genuineness appears upon the face of the instrument itself, the question must be raised, and the alteration explained, when it is offered and before it is received in evidence (Low v. Merrill, Burnett, 185; Schwalm v. McIntyre, 17 Wis., 232; Greenleaf on Ev., § 564); and the question of the genuineness of the note offered in this case, as being a copy of or substitute for the note set out in the complaint and the one actually given, which must be determined mainly by inspection, would seem to fall within the same rule.
In this case, the defendant Thomas-Austin was allowed to testify upon the question, and did not deny the genuineness of the note which had already been received in evidence, but said he had his doubts about it, and still it might be his signature, but that some portions of it did not look as if it was. Such very uncertain and doubtful testimony would scarcely raise a suspicion of the genuineness of the paper, and we think the evidence and instructions based upon such a mere suspicion, if possibly raised, were properly excluded.
The evidence offered based upon the theory that the note *531and mortgage were not the separate property of tbe plaintiff,,, but were in fact the property of her husband, the witness Eber Austin, was also immaterial to the issue and in contradiction of the fact admitted in the answer.
The other ground upon which the declarations and admissions of the witness and agent, Eber Austin, were claimed to have been admissible in evidence, that they were made while he was engaged in the business of his agency for the plaintiff, and therefore formed a part of the res gestes, appears, in respect to all such evidence offered, to be untenable; because in no instance were such declarations or admissions made in connection with any act done by him as such agent, so as to come within the rule laid down by this court in Livesley v. Lasalette and wife, 28 Wis., 38, and numerous cases not necessary to be cited, “ that the declarations of the agent, to bind and be admissible against the principal, must be made at the time of the act or transaction by the agent, and constitute a part of the res gestae,” and that “ the power and capacity of a husband, when acting as the agent of his wife, are no greater than if he were acting as the agent of any other person.” This disposes of all of the exceptions falling within these two classes, and which constitute most of the exceptions taken.
The evidence offered as to the business transactions and pecuniary circumstances of the agent Eber Austin, as tending to prove that he must have received the payments claimed to have been made to him as such agent, we think was properly excluded, as being too remote to have any legitimate bearing upon the question of such payments; and so also the testimony of Mrs. Abby Thompson as to seeing the wife of Thomas Austin leave the room and go into the kitchen for ink, etc.; and that of Johnson showing that Thomas Austin borrowed money of him in the presence of Eber Austin, the agent, for the purpose of making payment on the note. The evidence offered to contradict the evidence of Eber Austin, the agent, was properly excluded, if for no other reáson, because the statements sought to be contradicted were not connected with any act done by him as such .agent, and were irrelevant and immaterial, and *532could not be made the foundation of this method of impeachment. Gfreenl. on Ev., § 462.
This case cannot be treated as a case at law tried with a jury, although certain special issues were submitted to a jury. It is a-case in equity, in which the judge, as the chancellor, notwithstanding the verdict of the jury on these special issues, must after all .find the facts for himself, and duly consider all the evidence, and render such judgment as justice and equity demand. In such a case, slight departures from the strict and technical rules which govern actions at law upon the trial, which do not affect the substantial justice of the judgment, will be disregarded. The supposed advantage of having the opening and closing argument, in a case at law, is not apparent upon the hearing of a cause in chancery; and we cannot presume in this case -that any substantial advantage has been gained or lost to either party, or that the judgment of the court was at all affected, by the order in which the argument of the learned counsel was allowed to be opened and closed; and we do not think it manifest that any injustice was done by the ruling of the circuit court upon this question; and unless i.t is so manifest, it is no ground of error, even in actions at law. Marshall v. The American Exp. Co., 7 Wis., 1.
Upon the questions-of fact raised upon .this appeal, we have carefully examined the evidence upon which the various payments claimed to have been made upon the note and mortgage by the defendant Thomas Austin, depend, and by which the learned counsel of the appellants claim they were proved to have been made.
The testimony of the defendant Thomas Austin, and that of the agent and witness Eber Austin, the only persons having positive knowledge upon the subject, are in direct conflict; and, to arrive even proximately at the truth between them, resort must necessarily be had to corroborating evidence and circumstances, if there be any, which should have weight upon one side or the other, and make a clear preponderance.
In respect to all of the alleged and contested payments, except the one claimed to-have been made on the 27th day of *533August, 1866, at the Bock County National Bank, of $1,900, we are unable to find any suck preponderance of the evidence-against the findings of the circuit court. r
"With regard to that payment, while conceding the superior advantages and facilities of the learned judge who tried the case, and of the jury which rendered the special verdict, by hearing and seeing the witnesses and observing their manner and appearance upon the stand, to form a correct opinion of their credibility, we are forced, by the evidence before- this court, to the conclusion that there is a clear preponderance of the evidence in favor of the fact of such payment.
It appears very certain that Eber Austin was in the city of Janesville on that day; and that Thomas Austin at that time had a deposit in that bank of the sum of $1,900, of which he drew out on that day the sum of $1,875. Thomas Austin, the defendant, testified that he paid Eber Austin, the agent of the plaintiff, within that bank, on that day, the sum of $1,900, to apply upon the note and mortgage. Eber Austin, in his testimony, denied such payment, and that he was in the bank on that day. Chester M. Crosby, the teller of the bank, testified that on that day Thomas Austin drew out of the bank, and that as such teller, he paid him, the sum of $1,875; that two or three men were in the bank with Thomas Austin, and he thinks one was his brother, and he remembers their standing along the side of the counter, counting the money and talking together. Alexander McGregor testified that he saw Thomas and Eber Austin together in the Eock County Bank, at the end of harvest of that year; that he saw four or five packages of bank bills between them, they standing by the counter opposite the teller’s paying desk, and saw Eber Austin put the money in his pocket. I. B. Cook testified that he was acquainted with Eber Austin; that on Monday, the latter part of August, 1866, he went into the Eock County Bank; that Thomas Austin and Eber Austin were standing at the right of the paying teller’s window, within two or three feet of each other, with some money in bank bills between them, in several, packages, with slips around them, as if just drawn from *534the bank; that Thomas said he was making a heavy payment to his brother; and that there was another man in the bank. David W. Austin testified that he saw Thomas and Eber Austin go into the bank together on that day. Freeman Bacon testified that he saw Thomas and Eber Austin together in the street and go into the bank together on that day, and that he saw the witness I. P. Cook go into the bank also.
This is very strong corroboration of the testimony of Thomas Austm that this payment was made; and it was certainly incumbent upon Eber Austin to explain this transaction, which he does not seek to do, but denies it altogether. These corroborating witnesses appear to be impartial and disinterested, and there is no good reason why their testimony should not be believed. "
We think that there is a clear preponderance of the evidence establishing this payment, and that it should have been allowed as a credit upon the note in addition to the $200 indorsed thereon.
This cause has been tried three several times, and it is presumed that all the evidence possible has been obtained; and, the principal witness of the plaintiff and her agent, Eber Austin, having died before the last trial, we do not think another trial ought to be awarded upon the reversal of the judgment on this question of fact.
By the Court. — -The judgment of the circuit court is reversed, with costs, and the cause remanded with directions to the circuit court to render the proper judgment for the moneys due upon the noto and mortgage, with the proper deduction of the $200 indorsed as paid thereon, and of the sum of $1,900 as paid on said note and mortgage on the 27th day of August, 1866.
ByaN, C. J., took no part.