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![handle is hein.slavery/ssactsengr0366 and id is 1 raw text is: DYSART V. DYSART
am not prepared to say that it would so operate) the adultery had been charged with
Mr. Holmes ?
But I will look a little more closely at the facts; that Mr. S. did take his wife and
child in the carriage to Fulham is proved, and he admits the fact, save as to the child,
but for what purpose, unless I take it from his answers, which were not read, I have
no evidence. Fox (the coachman) says that his behaviour was kind and familiar, and
that is the sum of his evidence; I think I cannot infer much from this. As to the
evidence of Knowles (the lady's maid), independent of all other objections to her
credit, and they are manifold, the conduct she [105] ascribes to Mr. S. is utterly at
variance with all probability; she says they were on the best of terms ; that Mr. S.
paid his wife the greatest attention, much more than usual; and what is the finish?
Mrs. S. quits her husband's house that night; then comes a series of letters all
manifesting her sense of his anger at her conduct, and desiring, if possible, to obtain
forgiveness; added to this a separation by deed. Mr. S.'s conduct in taking his wife
to Fulham that day may, if his reason for so doing be disbelieved, have been imprudent
and weak, but the whole res gestoe are entirely repugnant to culpable indifference to
her criminality, and equally so I may add to prior connivance.
I acquit Mr. S. of all legal culpability which can bar him from a separation by the
authority of this Court. I am not called upon to give my opinion how far gross and
offensive conversation and demeanour, and continued association with persons, not of
the purest character, may have tended to destroy all delicacy of feeling in his wife,
and so paved the way to the violation of his marriage bed and to all the evils resulting
therefrom.
There was an appeal from this sentence to the Court of Arches, in respect of the
charges against Mr. S. of adultery and connivance. On the 5th of August, 1845, the
dean delivered his judgment, affirming the sentence of the Consistorial Court, and
remitted the cause.
[106] THE RIGHT HON. LIONEL WILLIAM JOHN, EARL OF DYSART against THE
RIGHT HON. MARIA ELIZABETH, COUNTESS OF DYSART. Consistory Court of
London, Nov. 19th, 1844.-An allegation was given in by a wife, responsive to
a libel for a restitution of conjugal rights, pleading, in bar thereto, cruelty, and
praying a divorce.-Held, that the facts, as detailed in evidence on that allegation,
did nbt warrant the conclusion that a return to cohabitation would expose to
danger, or reasonable risk thereof, the personal safety of the lady.-In cbnse-
quence her prayer was refused, and that of the husband for a return to cohabita-
tion was pronounced for.
[S. C. 3 Notes of Cases, 324. Referred to, Kelly v. Kelly, 1870, L. R. 2 P. & D. 74.
Discussed, Russell v. Russell, [1895] P. 315: affirmed [1897] A. C. 395. See further,
p. 470, post.]
This was a suit, commenced in Trinity Term, 1842, and promoted by the earl
against the countess, for restitution of conjugal rights. The cause was argued at con-
siderable length in Easter and Trinity Terms, 1844, by Addams and Harding for the
husband, and by Dodson, Q. A.-, and Haggard for the wife.
Judgment-Dr. Lushington. This is a suit for the restitution of conjugal rights.
As the marriage is established the onus probandi shifts, and it lies upon the party
proceeded against to allege and prove a cause sufficient in law why the usual order
of return to cohabitation should not be made.
The primary defence on the part of Lady D. is, that the earl was guilty of cruelty;
if that charge be proved, it is clear that not only must the earl fail in obtaining the
decree be prays for, but that the countess will be entitled to a decree of separation.
It was contended by the counsel for Lady D. that even if the evidence did not legally
establish cruelty in the sense in which these Courts understand the term, yet that
enough was proved to induce the Court to withhold the customary order that Lady D.
should return to cohabitation. This argument raises a question of law of great
importance and of equal difficulty; but it is clearly the second question [107] in the
cause. I shall, therefore, for the present postpone the consideration of it, indeed, till
I have disposed of the main issue.
It is wholly unnecessary to say a word as to what constitutes legal cruelty. The
meaning of that term, as used in these Courts, has long since been settled by high
authority; moreover, in discussing the acts charged I must inevitably advert to the
980
I ROB. ECC. 105.](ViewImageLocal?handle=hein.slavery/ssactsengr0366&div=1&collection=&method=preview&ext=.png&size=3)