(dissenting.) The lesson in this case is beware of widows. In tbe summer of life tbe plaintiff, a grass widow, with a boy Arebie of seven, became tbe housekeeper of defendant, an industrious and thrifty farmer. Both were Scotch and their years were nearly tbe same. The lonely winter nights were passed in each other’s company “till twixt the late and early.” The result was what the French call a marriage of convenience. During twenty years, with some intermissions, they lived happily together. Then, as it seems, John found monotony in loving one who was past the age of bearing him an heir. He quickly wooed and won a young lassie who became his wife. The result was an action for breach of promise and a judgment against John for nearly $6,000, which he paid as a penance. But that was not all. At the time of commencing the suit the new wife was assaulted with several threatening letters of a vile and obscene character. John’s home was invaded and turned into a nuisance. It was a clear case of malicious mischief and a misdemeanor. Comp, laws, § 10,050. John called Sheriff Peterson, who viewed the damage and testified thus: The chairs of leather and upholstery were cut in different places with a knife. The cuts were from a half inch to 4 or 5 inches. The davenport or lounge was cut in the same manner. The trunk was filled with dirty clothing and slops. There was a hat box in, the closet and someone had done a job in it. A fur coat was tom and the lining cut. He said to Anton: The woman must he crazy to do such a thing as that. Then, as the sheriff testified, John Anton rode with him to the state’s attorney and he, the sheriff, told the state’s attorney what he had seen in the house. The conclusion was that she should be arrested on a charge of insanity, though John made the statement that he did not see her -do the work and his idea was to have her arrested on a charge of malicious mischief. But on the charge of insanity she was arrested and'imprisoned four days and then discharged by the insanity board. She herself spoke to William Nash concerning the matter and said: I might have been a little off, but I was not crazy. And what she said is probably true. And it may well be true that after an imprisonment or restraint during four days on a spare diet she was sobered, and that when she appeared before the insanity board her mind was not in the same condition as when she committed the mischief. Nothing is more certain than that she *57did commit the mischief for which she was liable in treble damages and to imprisonment for one year with a fine of $500. To say that sñe was crazy or “a little off” was the best excuse that could be given for her crime. Assuredly ■ defendant had a right to invoke the protection of the law. He did as the officers of the law advised him. He preferred a charge of insanity when the real cause was malicious mischief. The plaintiff has no reason to complain that on a charge of insanity she was imprisoned four days when on a charge of malicious mischief she might well have been imprisoned for a year1. She has no cause of action. Still she obtained a judgment against the defendant for $6,000.
The record evidence covers nearly four hundred pages and shows that from start to finish the trial was conducted as if it were a breach of promise case. On a pretense of showing malice or excusing the mischief, counsel for plaintiff offered evidence showing the amicable relations of the parties and the way they had lived together in harmony, under a promise of marriage, for nearly twenty years. The only purpose of such testimony was to inflame and prejudice the minds of the jurors. And for the same purpose, defendant was asked if he had not been too intimate with his wife before marriage. And against the most strenuous objections the court ruled that defendant must answer the question? It is almost incredible. By Mr. Cuth-bert the purpose of the question was stated thus: “To shoto what a/roused the, woman to commit the acts she did.”
But the woman was not on trial for what she did. It is hard to conceive that such testimony was offered in good faith. Its effect and purpose must have been to influence and prejudice the minds of the jury and to secure an unjust verdict. That is further shown by the mass of irrelevant matter regarding the amours of the plaintiff and the defendant for a period of some twenty years. From the beginning to the end the record of the trial is swollen with such matters. The result is a verdict grossly, fearfully, and monstrously excessive, and it is against a man who has earned his little property by Scotch frugality and hard work. It is tho natural result of a nefarious practice which permits a lawyer to prosecute a damage suit for a contingent fee of 50 per cent and at the same time to practice deception and *58pose before the jury as .a disinterested minister of justice. There should be a law or a court rule to put a stop to such a practice.
The only real question here presented is whether to dismiss the action or to remand it for a new trial. As we think, the action should be dismissed because the evidence clearly shows the plaintiff was the aggressor and defendant had a right to protect himself, his home, and his wife against her wanton depredations. The charge of insanity was made for self-protection and for no other purpose. It was made on the advice of the officers of the law and the advice of the sheriff who had seen the depredations and declared that no sane person would commit the acts she did. It was the mildest charge that could have been made against her. On the charge of a misdemeanor the punishment would certainly have been more severe. The plaintiff has no reason to complain.