
    Hartje, Appellant, v. Hartje.
    
      Divorce — Evidence—Question of fact — Adultery.
    On a libel for divorce by a husband against his wife on the ground of .adultery, where both the respondent and the co-respondent deny the charge, and there is no competent evidence to support it, except the testimony of one witness, and such testimony is contradictory and shows a violent bias against the respondent, the court is justified in refusing a divorce.
    Where the respondent in a divorce suit is given no special opportunity to examine or read a letter offered in evidence, and admits that the letter is her own, and such letter is made a standard of comparison with the handwriting in other letters, the respondent may, upon a fuller opportunity being given her to examine it, repudiate it as having been written by her, first, because it was not her handwriting, and, second, because it contained more than was in a letter she admitted she had written to the person addressed in the letter offered in evidence.
    A letter of an incrimiriating character, tom into shreds and pasted together, was offered in evidence in a divorce proceeding as a letter addressed by the respondent to the co-respondent. It was written on a broad side, and there was no appearance of any fold in it. The paper was of such texture as to exhibit the evidence of a folding, if it had been made. It was alleged to have been discovered iü. a pile of ashes or offal at a stable at which the co-respondent worked. Both the respondent and co-respondent denied its authenticity. Experts in handwriting were divided in their opinion as to the genuineness of the letter. Held, that the letter was properly disregarded.
    
      Divorce — Appeals—After-discovered evidence.
    
    
      On an appeal from a decree refusing a divorce, the appellate court will not take original jurisdiction of the case, or remit the case to the lower court for the purpose of taking into consideration after-discovered evidence, where it appears that such evidence is merely cumulative of evidence that had been previously disregarded.
    
      Argued May 17, 1907.
    Appeal, No. 137, April T., 1907, by plaintiff, from decree of C. P. No. '2, Allegheny Co., Jan. T., 1906, No. 159£, refusing divorce in case of Augustus Hartje v. Mary Scott Hartje.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce. Before Frazer, P. J.
    The court below filed the following opinion:
    The testimony shows that the libelant and respondent were married March 15, 1894, and lived together until July 24, 1905, when they separated, respondent, at that time and within two days after the family’s return from a trip to Europe, taking their two children and going to reside at the home of her parents. Immediately after the separation, libelant, through mutual friends and also by a letter to his wife, dated July 26, 1905, endeavored to effect a reconciliation. These efforts proving unsuccessful libelant again wrote his wife, on August 5, 1905, withdrawing his previous request for a settlement of their differences. This latter letter was followed by these proceedings, in which respondent was charged with having committed adultery with Thomas Madine, a coachman who was in the employ of libelant from April 6, 1904, until June 5, 1905, and “divers other persons.” Subsequent to filing his libel and in response to rules for bills of particulars, libelant alleged acts of adultery on the part of respondent with Clifford Hooe, a colored man who was also employed by libelant as a coachman from April to about July 1, 1905, and with a man whose name was not given, whom respondent was charged with meeting at a prominent hotel in this city. Respondent was also charged with visiting and meeting men at an assignation house in Watson street. At the trial no evidence was offered in support of any of these charges except that of adultery with Madine. The failure to even attempt to sustain those charges may and should be treated as an admission of libelant’s inability to prove them. We therefore have before us for determination the single allegation of criminal intimacy with Thomas Madine. In support of that allegation witnesses were called by libelant who testified to occurrences which they said took place between Madine and respondent in the Hartje home; and in addition to that testimony twenty-six letters of a highly incriminating nature were offered in evidence which libelant claimed were written by respondent to Madine. The burden of proof was on libelant to show respondent’s guilt by the weight of the testimony. He must prove the offense charged against his wife either by affirmative testimony or by “circumstances that would lead the guarded discretion of a reasonable and just man to the conclusion of guilt.” Has he sustained the burden? The witnesses called to prove the occurrences which are said to have taken place at the home of the parties, were, with one exception, servant girls who had lived in the family. Of these witnesses Katie Schempel was employed as a cook for about seven weeks beginning in February, 1905, and Fannie Jackolitch, also a cook was there for three months in the fall of 1904, and also from April to June, 1905. The testimony of Katie Schempel as a whole, is rather more favorable to respondent than libelant. Both girls say Madine was frequently in the upstairs part of the house, and while Fannie Jackolitch testifies to one or two incidents which were not consistent with prudent conduct on the part' of respondent, those occurrences, if true, indicate no more than an impropriety. The testimony of Katie Schempel proves nothing, and that of Fannie Jackolitch is of little weight, especially in view of the fact that she admitted, on cross-examination, that Madine when upstairs usually played with the children and that Susie Wagner was generally on the second floor at the same time. Annie Lutz, a seamstress in the Hartje house at intervals during several years immediately preceding the separation, also testified that she had often seen Madine in the upstairs, hall and also in the nursery and that he had slept in the spare room on two occasions during the absence of libelant from home. She, however, also said that she “never saw respondent do anything wrong,” and that she was “kind to the servants, devoted to her children and a good mother.”" Aside from her statement that Madine slept in the spare room on two occasions during libelant’s absence from home, which was denied by both respondent and Madine, there is nothing in her testimony to indicate more than imprudence on the part of respondent. Of the servants in the Hartje house, Susie Wagner, an “upstairs girl,” was the most favorable in her testimony toward libelant. Susie entered their employ September 1,1904, and remained with them until June 1,1905, when she accompanied the family to Europe, leaving them, however, upon their arrival in Liverpool, and going to the home of her parents in Germany, where she remained until the latter part of September, when she returned to this country, arriving in New York about October 1, 1905. This witness testified to several incidents of a highly incriminating nature in which she said respondent and Madine figured. That her story is grossly exaggerated and built upon a very slight foundation, is quite apparent. She is flatly contradicted by both respondent and Madine and is not corroborated in any instance by a single witness. It seems impossible that all the happenings testified to by her should have taken place in the Hartje house and not a single one of them be witnessed by one or more of the other servants. Susie was a strongly prejudiced witness, and, in giving weight to her testimony, we must consider that she was brought to this country from Germany in the fall of 1905, by her brother at the request and expense of libelant, that she was met upon her arrival in New York by libelant and his attorney, that she has been under the influence of relatives of libelant since her return to a considerable extent, that while in New York upon her return to this country she was shown statements purported to have been made by two other servants and told that “she knew the same and maybe more,” that she is not even an ordinarily bright girl, and that she also made a statement to respondent’s attorney, in which she said “that she did not know anything bad about respondent.” We cannot conceive that a married woman of iiitelligence and refinement and the mother of children would be guilty of such intimacy with a male servant as Susie testified respondent was guilty of with Madine. The improbability of her story brands it with suspicion. The testimony of these four servant girls is relied upon to establish incidents happening in the Hartje home, which libelant claims indirectly proves criminal conduct upon the part of respondent. Both respondent and Madine denied all improper conduct charged against them, and called other servants who were employed in the family from time to time during the years 1904 and 1905, who testified that respondent’s conduct was proper at all times and that they had seen no wrongdoing upon her part or undue intimacy with Madine. It was admitted by respondent' that Madine was frequently in the front part of the house and also upstairs. It was, however, denied that he was there at any time for an improper purpose. The weight of the testimony is that he was employed to assist in certain housework, beating rugs, moving furniture and cleaning porches, as well as driving the horses. Among other tilings, it was his duty to drive the little daughter of libel-ant and respondent to the kindergarten she attended, and it is uncontradicted that he usually carried the little girl from the nursery to the carriage in the morning and back to the nursery from the carriage upon bringing her home, and it is also uncontradicted that Madine often at libelant’s request spent the evenings with the children in the nursery while libelant and his wife were out driving. These duties satisfactorily explain Madine’s being so frequently on the second floor. Giving the testimony offered to prove the incriminatory house incidents the fullest credit it is in our opinion entitled to receive, we are clearly of the opinion that it does not establish either directly or by inference a criminal intimacy between respondent and Madine. Respondent’s visits to the stable are relied'upon to assist in sustaining the libel. The téstimony shows that respondent has a fondness for fine horses and took great pride in their horses and carriages. That she visited the stable quite frequently, is admitted. Her visits there, however, were not so common and made under such circumstances as to justify even an inference of criminal intimacy with the coachman, and were it not for the testimony of a sister óf libelant, who says that upon going to the Hartje stable one morning she saw respondent and Madine coming from an alcove, I should not deem it necessary to even refer to that branch of the case. The witness said respondent was embarrassed,' and that she, the witness, felt very much as though she had intruded. Respondent denied receiving a call from the witness under the circumstances detailed by her. Assuming, however, that witness called at the Hartje house and found respondent at the stable, the occurrence, it seems to me, was not at the time looked upon by her in an unfavorable or suspicious light. She said nothing to either her sister-in-law or libelant about the incident and continued upon friendly and intimate terms with respondent until respondent’s separation from her husband. While it is quite probable that the witness went to the stable as she testified and found respondent and Madine both there, the circumstance indicates no more than indiscretion upon respondent’s part, especially as the stable doors were open and afforded an opportunity to any person to walk in without notice or warning. While respondent visited the stable perhaps oftener than prudent women customarily do, her fondness for fine horses and carriages, in which she was encouraged by her husband, is to a certain extent an excuse for what the testimony at most shows was an indiscretion upon her part.
    In addition to the testimony of incidents at the Hartje home, libelant offered in evidence to support his libel, twenty-six letters which he claimed were written by his wife to Madine. These letters, if written by her, contain sufficient admissions to convict her of the improper conduct charged in the libel. To establish their genuineness, which was denied by both respondent and Madine, comparison was made with certain admitted letters and writings of respondent, which were used as standards. Among the standards first offered was a letter addressed to Susie Wagner, the servant above referred to, and marked exhibit No. 6. This letter was at first, upon a casual examination, admitted by respondent to be in her handwriting; subsequently, however, upon further examination, it was repudiated by her. In libelant’s case in chief, he and two experts on handwriting testified that all the disputed letters were- in the handwriting of respondent and a third expert testified that some of them were written by her. The testimony of these witnesses was very much weakened by their testifying that exhibit No. 34, an envelope addressed to Madine, was also written by respondent; that envelope was undoubtedly addressed by a sister of respondent; the young lady so testified, and stated the circumstances ’ under which it was addressed, and while on the witness stand at the request of counsel addressed two envelopes with the same inscription as that contained on exhibit No. 34, which to my mind clearly established the identity of her handwriting. The testimony of these witnesses and the experts who were afterwards permitted to testify in regard to exhibit No. 6, the Susie Wagner letter, was not convincing. While they selected letters and words in both the standard and disputed writings that were almost identical in form and shading, they admitted that the writing in the standards was angular and irregular, while that in the disputed letters was round and uniform — in other words, that the penmanship of the disputed letters was better than that of the standards and more easily read. These experts also admitted a difference in the pictorial effect in the writing in the two sets of letters; on the other hand, the experts and other witnesses called by respondent to disprove the letters, almost without exception sustained their opinions with substantial reasons. These witnesses included members of respondent's family, experts of national reputation, bank officers of this city, and teachers of penmanship in our city high school. Practically but three persons, libelant and two experts on handwriting, testified that the disputed letters (excepting exhibit No. 6) were written by respondent. The opinion of these experts was based upon a comparatively brief examination of the papers. Subsequently, however, these and other experts were permitted to testify upon further examination as to the genuineness of the “Susie Wagner letter,” exhibit No. 6. Whether that letter is in the handwriting of respondent, is very material in determining whether or not the other disputed letters were written by respondent. A number of the experts called on each side testified that the person who wrote exhibit No. 6 also wrote many of the other disputed letters. The penmanship of that letter is certainly different in several particulars from that of respondent. While the writing in exhibit No. 6 resembles that of respondent, an inspection reveals considerable difference from her admitted penmanship, both in the formation and shading of the letters and also in the pictorial effect of the writing. Instead of the angular formed letters of the standards, the writing in the Susie Wagner letter is round, and instead of being written in the nervous and careless style of respondent, the letter -has every appearance of deliberate preparation. The letter, in our opinion, is not in the handwriting of respondent. This conclusion is strengthened by the circumstances under which it reached Miss Wagner. Respondent says she wrote Susie but two letters, one from London and the other shortly after her return from Europe, and Susie says she received two letters from respondent while in Germany, one written in London and the other in Pittsburg; this latter one she says she brought with her to this country, and upon her arrival in New York about October 1, gave it to libelant’s brother. The disputed letter, exhibit No. 6, was not received by'her until the latter part of November, and was forwarded to her by her mother from Germany almost two months after her return to this country, and more than six weeks after respondent had seen and talked with her in this city. The letter, like the other disputed ones, is not dated, nor is the post-marked envelope produced with it. In addition to respondent’s denial that she wrote the letters, and that of Madine that he ever received them, and the testimony of the experts, which is overwhelmingly to the effect that the disputed letters were not written by respondent, there are several circumstances which strongly confirm that conclusion. The fact that not a single one of the disputed letters bears a date, attaches suspicion to them, as does also the fact that but a single post-marked envelope accompanies them, and that one certainly not in respondent’s handwriting. With these circumstances must also be considered the manner in which libelant claims to have obtained possession of the letters. We know of no law that authorizes a litigant to commit a felony or other crime for the purpose of enabling him to secure evidence to sustain his litigation, yet, in this case, if their testimony is true, libelant’s detectives entered the boarding house of Madine for the purpose of robbing him, and actually did take from him papers that had no connection with this case whatever. While they say that, at the same time, they also secured the disputed letters from Madine’s trunk, Madine says he never had them in his possession, and never saw them until they were produced in court and offered in evidence. It was argued that Madine’s denial should have little weight on account of his interest in the determination of this case; it can also be said that those who contradict him in regard to the letters are self-admitted lawbreakers. We saw nothing in the manner of Madine as a witness that suggests any reason why he is not as worthy of belief as the two detectives who say they robbed him. In addition to Madine’s denial, the detectives are flatly contradicted in material parts of their testimony by both the woman who kept the boarding house and her daughter; and, further, if these letters are genuine and were obtained from Madine’s possession, why were they so mysteriously mailed in bundles at intervals to libelant’s counsel by libelant’s brother-in-law, to whom they were given by the detectives, instead of being delivered personally? This latter circumstance was not satisfactorily explained, and it alone is sufficient to stamp the letters with suspicion. On the whole, instead of libelant establishing the genuineness of the disputed letters, as the burden was on him to do, by the’weight of the testimony, the preponderance of the evidence shows that these letters are not in the handwriting of respondent. Giving the testimony offered by libelant the fullest credence it is in our opinion entitled to receive, we are clearly of the opinion it fails to sustain the libel and convict respondent of criminal intimacy with Thomas Madine. We are confirmed in this conclusion by the failure of libelant to furnish any account of what facts came to his knowledge concerning the conduct of his wife, or how he became advised of them during the interval between his two letters to her of July 26 and August 5, above referred to. Immediately after respondent went to the home of her parents, libelant through his brother and also through an intimate lady friend of respondent, endeavored to induce her to return to him, and in addition to personal requests upon the part of these persons, libelant, two days after the separation, wrote his wife, asking her to return to their home; the letter begins, “My dear Mary,” and, after reciting that his brother had informed him of respondent’s absolute refusal to return home, imploringly asks her “as.his wife” to come back, and closes with the words, “Lovingly yours.” Certainly, when libelant wrote that letter, there was not even a suspicion in his mind of improper conduct upon the part of his wife. There being no evidence to the contrary, we must assume that up to this time libelant had not the slightest reason to suspect his wife of being criminally intimate with either Madine or any other person. Had he even suspected her of wrongdoing, that letter would not have been written. Ten days later he wrote her again, as follows: “ Since my letter to you of July 26-95, asking you to come back, facts have come to my knowledge which give me ample reasons to recall my request for your return to me. I therefore recall the offer made in that letter.” Yet in his testimony at the trial there is not a single wqrd indicating what facts had come to his knowledge between the writing of the two letters that gave him “ample reason” to recall his request for a reconciliation. Certainly, he had not learned what Susie Wagner would testify to, as she was then in Europe. There is no evidence to show that he even knew where the other servant girls were at the time, or had' any information as to what they would testify to, and he could not have known of the incriminating letters as they were not taken from Madine’s trunk until about a year afterwards, according to the detectives’ testimony. What knowledge had ’ he acquired, in the meantime concerning his wife’s conduct? The testimony fails to show that he had obtained any information on that subject. While his failure to show what information he received during that interval is not conclusive against the truthfulness of his charges against his wife, it is, especially under the circumstances of this case, an omission that not only detracts from the value of the testimony offered to support the charges, but goes directly to the good faith of the accusation. In view 6f the conclusion reached above, we deem it 'both unnecessary and inadvisable to discuss the affirmative testimony offered by respondent to show adulterous practices on the part of libelant, especially as that testimony will no doubt be at least partially relied upon by respondent to sustain the libel in her proceeding against her husband for a limited divorce, which is now pending.
    November 18, 1907:
    And now, December 12, 1906, decree refused and proceedings dismissed at cost of libelant.
    
      Error assigned among others was decree refusing divorce.
    
      J. S. Ferguson, with him John Marrón and W. B. Rodgers, for appellant.
    
      M. W. Acheson, of Patterson, Sterrett & Acheson, and John M. Freeman, of Watson & Freeman, for appellee.
   Opinion by

Beaver, J.,

The libel in this case charges the respondent with a violation of her marriage vows and names as co-respondent Thomas Ma-dine, who was in the employ of the libelant for a considerable period.

The case was tried at great length and with painstaking care in the court below. The testimony is very voluminous, covering over 2,000 printed pages in addition to the lithographed exhibits.

The opinion of the court below states the admitted facts of marriage, the condition of the family and the separation, which need not here be recounted. The trial judge also makes an analysis of the testimony in the case and upon this bases his reasons for refusing the prayer of the libelant.

The decree “And now, December 17, 1906, decree refused and proceedings dismissed at the cost of the libelant,” and the allegation that “The court erred in not mailing and entering a decree granting the libelant a divorce, a vinculo matrimonii, as against the appellee,” constitute the tenth and eleventh assignments of error.

The appellant’s counsel, in their argument, say: “We insist upon the errors set forth in the various assignments, but after all the principal question is the one that we have argued, that under all the evidence the libelant was entitled to the decree which he asked for.”

This, of course, is the crucial question, and to it we have given careful heed, basing our conclusions upon a full consideration of all the evidence in the case.

This evidence is of two kinds. First, the testimony of servants employed in, and friends of, the family, familiar with the relations of the parties and the family life. With the exception of that of a single witness, this testimony is not only not convincing but is scarcely sufficient to arouse even a suspicion of improper relations between the respondent and the corespondent. If, as appears from all the testimony, the latter was called from the stable to the house to assist in certain parts of domestic service, such as the moving of heavy furniture, the turning of mattresses, etc., and if, as appears from the testimony of some witnesses, he was engaged in certain portions of domestic service which necessarily involved his presence in the house, and was accustomed to carry at least one of the children from the nursery to the carriage and vice versa, his frequent presence in the house is fully accounted for. This being so, the facts narrated by the witnesses, with the single exception already referred to, even if true and taken at the worst, cannot be construed into anything more than indiscretion and possibly a lack of womanly reserve and sensitiveness in the matter of dress, etc., in the presence of a servant.

And so the presence of the respondent in the stable is explained by her interest in her horses and in the general management of the stable, of which she seems to have had, in some respects at least, practical control.

The excepted witness, to whom reference has been made, is Susie Wagner. She was evidently a strongly prejudiced witness. It is impossible to read her testimony, even without seeing the witness, without reaching this conclusion. She was brought from Germany by the libelant and was met, on her arrival in New York, by him and his counsel. She not only states alleged facts, but in drawing inferences from them does so uniformly at the expense of the respondent. Her environment at the time of the trial, the explicit denial by the respondent and co-respondent of every material incriminating allegation, the statement made to the counsel of the respondent, steno-graphically taken down at the time,. in .which she expressly admitted, in answer to the question, “You said you didn’t know anything bad about Mrs. Hartje, didn’t you?” she answered “Yes, sir,” together with other equally contradictory statements, all force the conviction that her testimony is to be, to say the least, received not only with great care but with suspicion and such well-founded doubt as to preclude a conclusion such as we are asked to deduce from it.

As to the second land of evidence, which is by far the most important, and which, if convincing, would almost necessarily preclude any other conclusion than that the facts, as stated in the libel, were true, we have given to it careful and painstaking consideration. The incriminating part of this evidence consists of many letters, alleged to have been written by the respondent to the co-respondent. Whether or not these letters are genuine is the serious question involved. Their authenticity is absolutely denied by both the respondent, who says she never wrote them, and by the co-respondent, who says he never received them. They were, however, in the trial, the subject of a mass of expert and other testimony which is commented upon at considerable length by the trial judge in his opinion.

The expert testimony is based largely upon two exhibits offered by the libelant, known as No. 6 and No. 35. The introduction of No. 6, although not in any particular unusual, is somewhat peculiar, in view of what followed. Nos. 1, 2, 3, 4 and 5, admittedly genuine, were declared by the respondent, who was upon the stand, as having been written by her. When No. 6 was produced, the question was asked: “I hand you a letter marked exhibit 6, addressed to 'My dear Susie,’ and I ask you if that is a letter written by you? A. Yes, sir. Do you want me to tell what is in this letter? Q. No, I can read the letter, Mrs. Hartje. You did have a servant named Susie? A. Yes, sir.” It will be observed at once that the witness had no special opportunity to examine or read the letter. This letter, so admitted, was made the standard of comparison with many that followed and is one of the focal points of discussion and contention in the case. Many of the experts say that the hand which wrote No. 6 wrote the most of the letters alleged to have been written by the respondent to the co-respondent, which, if the fact were established, would almost inevitably lead to the conclusion that the charges contained in the libel were true. Subsequent to the admission of the letter and, when the respondent had an opportunity to examine it, she repudiated it as having been written by her, first, because it was not in her handwriting, and, secondly, because it contained more than was in the letter which she admitted she had written and sent to Susie Wagner.

Another exhibit, around which battle , fiercely raged, was No. 35. Both the communication itself and the circumstances attending its production are peculiar. It was alleged to have been written by the respondent and sent to the co-respondent. It was alleged to have been discovered in a pile of ashes or offal at the stable months after the separation of the libelant and the respondent and after the co-respondent had quitted the employ of the .libelant. It was in shreds or small pieces and was pasted together, certain parts being omitted — presumedly not found- — but enough of it remains to determine with sufficient clearness that it could scarcely have been written by an innocent woman to an innocent man. The respondent denies explicitly that she. ever wrote.it and the co-respondent, with equal emphasis, denies that he ever received it. It is written upon a broad side. It is evident that it was never folded. No evidence of any fold appears, either in the original which was exhibited to us or in the photograph which we have before us. The paper is of such texture as to exhibit the evidence of a folding, if it had been made. If written by the respondent and sent by her to the co-respondent, it must have been sent to him by the hands of a third person. It is not conceivable that this could have been done, without its having been folded. If the testimony,of the respondent and co-respondent is worthy of any credence whatever, if the simple circumstance to which we have alluded has any significance, if the testimony of those who are most familiar with the handwriting of the respondent has any value, it would seem as if the experts — and they are numerous — who testify that it was not written by the respondent, should be taken of such corroborative force as to make the question of the genuineness of this letter very doubtful. Certain it is that this to our mind is not established by the preponderance of evidence. We are not unmindful of the number, character, ability and reputation of the experts in handwriting who testify on behalf of the libelant as to the genuineness of exhibits Nos. 6 and 35, but their testimony is not more convincing than is that of those who testify on behalf of the respondent who reach a different conclusion.

No specially useful object will be attained by further details of discussion. Following the lines already indicated in what we have said in regard to these exhibits, we reach the conclusion that the allegations of the libel are not sustained by a preponderance of evidence. This it was clearly the duty of the libelant to do in such a way as to satisfy the trial judge in the court below, or to satisfy us upon re-examination of the whole case. The trial judge was not satisfied. We are not satisfied. And upon this branch of the case, therefore, we agree with the conclusion reached by the trial judge, for many of the reasons stated by him in his opinion dismissing the libel.

A number of questions, relating to the admissions of evidence, are raised by other assignments of error. We are unable to see, upon a careful examination of them, or of the testimony admitted or excluded, that they can in any way seriously affect the conclusion reached. For the most part they relate to the admission or rejection of evidence offered in rebuttal. This is always very largely a question within the discretion of the judge, even where it arises in the trial of a case before a jury. It becomes even more a matter of discretion when the case is tried before a judge who, by reason of his ability to weigh and determine the value of evidence, is not likely to be misled. So far as we can judge of the character and materiality of the offers of evidence which were excluded, taking them at their full value, so far as that can be ascertained from the offers themselves, we cannot see that they could have materially influenced the decision of the court, and, assuming all that is contained in the offers, so far as we can determine the value of the testimony offered therein, it would not influence us in the conclusion which we have reached.

In the hearing of this case before us, it was fully, ably and elaborately argued, and to both oral and printed arguments we gave, and have given, the fullest consideration. We are indebted to counsel of both sides for the industry displayed in their printed arguments and for the ability manifested in the presentation of the case from every point of view.

We have not regarded it as desirable to traverse more fully the ground covered by the opinion of the trial judge in the court below, but have contented ourselves with giving very briefly some of the reasons which lead us to the conclusion reached by him in the final disposition of the case.

The decree of the court below, dismissing the libel, is hereby affirmed, the assignments of error are all overruled and the appeal is dismissed at the costs of the appellant.

After this case was argued here and the conclusion reached which is announced above, a petition was presented on behalf of the libelant, setting forth in detail certain alleged after-discovered evidence and praying this court “to assume original jurisdiction of the matter and to take such steps and make such orders for the taking of testimony in support of this petition as to the court shall seem meet,” and, in the event of our declining to do so, that we “suspend, consideration of the appeal now pending and remit the cause to the court below for the taking of such testimony.” In the answer filed by the respondent and on the argument upon the case as presented by the petition and answer, the power of this court to take the testimony or to remit the case to the court below for the taking thereof was distinctly admitted, so that for the purposes of this case it is not necessary for us to discuss this question.

Assuming, therefore, that we have the power to grant the prayer of the petitioner, as we do only for the purposes of this case, we dispose of it upon the contents of his petition and the accompanying exhibits, and of the answer thereto as filed by the respondent.

The petition is accompanied by the affidavit of the libelant, but is not supported by any affidavits of witnesses as to what their testimony would be or as to the manner in which the alleged documentary evidence was procured.

Assuming that everything alleged in the petition can be shown, we have a mass of letters alleged to have been written by the respondent which, in effect, are only cumulative and which raise no new question, and some written by other persons which are wholly immaterial to the issue and can throw no light upon it. As to ' the alleged facts to be proved by the co-respondent, his testimony, if correctly represented in the petition, must necessarily start with a declaration which would utterly discredit him as a witness and would lead only to the elimination of his testimony already taken which, if done, would not, in our opinion, materially change the general aspect of the case and would not lead to any different result.

In this connection we have also considered the supplemental petition accompanied by the affidavits of the mother and sister of the alleged co-respondent, but can find nothing in it or them which leads us to change our conclusion or warrants us in granting the prayers of the petitioner.

The prayers of the several petitions for suspending the case for the purpose of taking additional testimony are denied.  