got new ones on top." Then it seems he was always loving and doving the chambermaids, calling them pet names, visiting them in their rooms. She was driven to commence a prior divorce suit. They made up and agreed to forgive and forget, and he at once commenced the same old thing, and worse. He got more violent and more aggravating. It was a constant uproar all the time. When she went to early mass and confession with her daughter, Angeline, John did not think her penance sufficient and so he had to give her a good beating. The daughter, Angeline, testifies: He continued pounding her mama while she was begging him to stop. Angeline testifies that, when she was a child, he beat her fully three times a day. She feared him and ran away, and he ran after her and beat her on the way home. His home was as the Deserted Village:

"No children run to lisp their sire's return,

And climb his knees the envied kiss to share."

Of course the plaintiff was a woman of some spirit, and not a dog to lick the hand that beat her; and so it may be that at times she attempted to take her own part and to give blow for blow and abuse. for abuse, and that she did not tamely submit to her treatment. That was all very proper and right. But she was by far the weaker of the two, and it is sheer folly to say that she was the aggressor and that she was guilty of love's treason. When the lion and the lamb lie down together, and the latter gets up covered with marks of violence, we must not think that the lamb was the aggressor. Defendant denies the

testimony of the plaintiff and all her witnesses. He said they all lied. But his testimony is wholly incredible; it is not true.

He was insanely jealous, and it seems he thought by beating, nagging, and baiting his spouse to drive her to desertion or to submission and affection. To throw off her loneliness and her burden of care and sorrow, she consorted with one or more vivacious lady friends, and played the part of the Merry Wives of Windsor. This the court terms an indiscretion, and doubtless it looked awful bad to John. Like the master Ford of Shakespeare: "He could little understand his wife's love of her lively neighbors' company or the feminine necessity for a change of scene and lively diversion." So he did not make amends by going on his knees and saying to her: "Pardon me, wife. Henceforth

do what thou wilt. I rather will suspect the sun with cold than thee with wantonness.”

The trial of this case and the conduct of the appeal is itself a sufficient cause for a divorce. It shows no spirit of gallantry or fairness. It is in keeping with the charge of cruelty made in the complaint. For two weeks the ordeal of the trial was protracted while resort was had to every device to humiliate the plaintiff and besmirch her womanhood. She was openly and persistently and shamefully and falsely charged with crime. She was continuously harassed and insulted by counsel concerning alleged crimes and other vexatious matters. She was treated without respect due to a wife and mother. In all fairness and honor the plaintiff is entitled to an equal share of the property. The trial court awarded her only one third of it, and yet the defendant appeals to this court, and hires lawyers and ex-judges to come here to slander the plaintiff. Her own property held in trust in the name of the defendant is used to hire lawyers to traduce her.

The judgment should be affirmed.

INDEX.

ACCEPTANCE.

Of insurance risk, see Insurance, 2.

ACCIDENT INSURANCE. See Insurance.

ACCORD AND SATISFACTION.

Sufficiency of proof of, see Evidence, 18.

1. Where a creditor voluntarily offers in writing to accept as full payment of
a debt owing to him an amount less than the debt, he is at liberty to with-
draw the offer at any time before the amount is received in full satisfac-
tion of the debt. Strobeck v. Blackmore, 593.

2. Sections 5826, 5828, and 5833, Comp. Laws 1913, construed and held not
to require any new consideration for the satisfaction of a debt by the
payment of a lesser amount, where there is a written acknowledgment of
satisfaction, or where the payment of the lesser sum in pursuance of a
written agreement to that effect; but such sections do not preclude the
withdrawal before final payment of an offer made in writing. Strobeck
v. Blackmore, 593.

ACCOUNTING.

Between cotenants, see Cotenancy.

ACTION OR SUIT.

As to parties, see Parties.

As to venue, see Venue.

As to service of process, see Writ and Process.

ADMINISTRATORS. See Executors and Administrators.

ADVERSE POSSESSION.

This is an action to determine adverse claims to a quarter section of land.
Under a mortgage foreclosure, and under a mortgage which gave to the mort-
gagee and its grantees the right to the possession of the land, and under a
claim and color of title in good faith, the plaintiff and her grantors have
been in actual adverse possession of the land for more than ten years.
Held, that all claims of the defendant are barred by statute. Steinwand v.
Brown, 602.

AFFIDAVIT.

For service by publication, see Writ and Process.

ANSWER. See Pleading, 4.

APPEAL AND ERROR.

From justice's judgment, see Justice of the Peace.

APPEAL BOND.

1. In absence of statutory requirement to the contrary, a judicial bond signed
by the surety alone is valid and enforceable. Great Northern Exp. Co. v.
Gulbro, 352.

DISMISSAL OF APPEAL.

2. Where an injunction is sought in the lower court to restrain a school board
from further proceeding with the remodeling of a building, on the ground
that, though it has the power only to repair, it is in fact erecting a new
building, and such injunction is refused and an appeal taken, but no super-
sedeas bond is furnished and no stay of proceedings granted, and pending
such appeal the work is completed, the matter involved becomes a moot
question, and the appeal will be dismissed by the supreme court. Thomp-
son v. Vold, 569.

TRIAL DE Novo.

3. Upon an appeal, under § 7846, Comp. Laws 1913, from a judgment award-
ing the defendant a divorce upon his counterclaim, and awarding the
plaintiff certain property, the entire judgment is open to review and the
cause subject to a trial de novo in the supreme court. Hoellinger v. Hoel-
linger, 636.

APPEAL AND ERROR-continued.

4. Section 4405, Comp. Laws 1913, authorizes a division of property between
the parties to a divorce action only when a divorce is granted; and upon an
appeal by the party to whom the divorce has been awarded, this court can-
not try the case anew, under § 7545, Comp. Laws 1913, without determin-
ing the correctness of that portion of the judgment awarding the divorce,
even though the appellant challenges directly only that portion of the judg-
ment which relates to the property division. Hoellinger v. Hoellinger, 636.

REVIEW OF DISCRETIONARY MATTERS.

5. When the trial court, in the exercise of its discretion, vacates and sets
aside a judgment obtained against the garnishee on the ground of some mis-
take of fact or for any other good reason which appeals to the sound judg
ment and discretion of the trial court, the order of the trial court vacating
and setting aside such judgment will not be interfered with in the appel-
late court, unless it clearly appears there is an abuse of the discretion
vested in the trial court. Cross v. Hillsboro Nat. Bank, 261.

6. A motion for a new trial based on the ground of newly discovered evidence
is addressed to the sound, judicial discretion of the trial court. The appel-
late court will not interfere unless a clear abuse of such discretion is
shown. Keystone Grain Co. v. Johnson, 562.

7. In the instant case, it is held that an abuse of discretion has not been shown.
Keystone Grain Co. v. Johnson, 562.

8. Upon examination of the motion for a new trial herein and the showing and
evidence adduced in favor of and against such motion for a new trial, it
is held that the trial court abused its discretion in not granting such new
trial, under subdivision 3 of § 7660, Compiled Laws of 1913, relating to
accident and surprise which ordinary prudence could not have guarded
against. McGinnity v. Case Threshing Mach. Co. 288.

QUESTIONS NOT RAISED BELOW.

9. As a general rule the constitutionality of a statute cannot be first raised
on appeal in a civil action. McCoy v. Davis, 328.

10. When letters are incorporated in an affidavit which are hearsay in their
nature, but no objection to the affidavit is made in the trial court on this
ground, no such objection can be raised in the supreme court upon appeal.
McCarty v. Thornton, 551.

WHAT ERRORS WARRANT REVERSAL.

11. A verdict based on clear and convincing evidence will not be vacated for
harmless error. Carr v. Neva, 158.