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![handle is hein.slavery/ssactsengr0367 and id is 1 raw text is: 1 ROB. ECC. 470. THE COUNTESS OF DYSART V. THE EARL OF DYSART 1. 105
of which the attesting witnesses know nothing,-to make an addition by disposing of
any residue that might arise. One object of the present statute is to alter the con-
struction put upon the Statute of Frauds in respect of the place for the signature of
a testator; another object is to prevent additions being made to a will after execution.
For anything that appears to the contrary, the whole of the first page might have
been written after the signature of the testator and witnesses. I have gone to the
fullest length, in the opinion of the Judicial Committee of the Privy Council, in my
endeavours to give effect to the intentions of testators ; further I cannot go. I cannot
say that this will is executed in due compliance with the requisites of the Act: it
would be useless, therefore, to allow this allegation to go to proof; under these
circumstances I feel bound to reject the allegation.
[470] THE RIGHT HON. MARIA ELIZABETH, COUNTESS OF DYSART against THE
RIGHT HON. LIONEL WILLIAM JOHN, EARL OF DYSART. Arches Court, March
2nd, 1847.-An allegation was admitted on behalf of a wife, responsive to a libel
for a restitution of conjugal rights, pleading, in bar thereto, cruelty, and praying
a divorce.-Held, reversing the decision of the Court of London, that the facts,
as detailed in evidence on that allegation, did warrant the conclusion that she
could not return home with safety and without a reasonable apprehension of a
repetition of the violence deposed to. In consequence, a sentence of divorce in
favour of the wife was pronounced.
[S. C. 5 Notes of Cases, 194, 261 ; 11 Jur. 490, 565. See p. 106, ante (with note).]
On appeal from the Consistorial Court of London.
Judgment-Sir Herbert Jenner Fust. In the Episcopal Court of London a suit for
the restitution of conjugal rights was promoted by the Earl of Dysart against the
countess, his wife. The usual proceedings took place. A libel was given in, in which
it was prayed that the wife might be assigned to return home and render conjugal
rights to her husband. The marriage, which occurred in the year 1819, was con-
fessed, but in other respects the libel was contested negatively. A long allegation
was admitted on the part of the countess, pleading circumstances under which it was
contended the earl was not entitled to succeed in his prayer, charging him with various
acts of cruelty which, if proved, would entitle her not only to be dismissed from the
suit, but in fact to have a sen-[471]-tence of separation in her favour. By way of
answer, an allegation of considerable length, with many exhibits annexed, was admitted
on behalf of the earl, denying the cruelty alleged, and charging the countess with
provoking, irritating, and abusive conduct. The result of the evidence taken on these
pleas was, in the opinion of the learned Judge in the Court below, that Lady Dysart
had failed in establishing her case, and that the husband was entitled to the sentence
he prayed.(a) From that decision an appeal has been prosecuted in this Court.
Independently of the high rank and station of the parties, there are circumstances
of peculiarity which render this case not only a most painful one to discuss, but also
one of considerable difficulty. Many of the transactions are pleaded to have occurred
full twenty-five years ago, and many at considerable intervals. Moreover the parties,
it would appear, lived many years apart, and when they did cohabit they passed their
time almost in a state of seclusion from society; the consequence of which has been
that the only persons, with few exceptions, capable of speaking to the terms on which
the earl and countess lived are immediate dependants-a class of persons amongst
whom, particularly in suits of this nature, it has been frequently observed there
generally exists some bias.
The marriage of the parties, who were first cousins, and ought to have known
something of each other's character and disposition, took place in September, 1819,
and the fruit of that marriage was the birth of a son in July, 1820. For some
months after [472] the marriage they cohabited together at the residence of Colonel
Toone, the father of the countess, and afterwards, at considerable intervals, at different
residences engaged by the earl, but altogether, it would seem, at no house belonging
to him, within the interval which took place between the marriage in 1819 and the
final separation in 1837, for a longer space of time than three years. With whom the
fault in this respect lay was the point discussed in the argument of counsel both in
this and the Court below : the counsel for the earl contended it was the duty of the
(a) The judgment is given, ante, pp. 106-144.](ViewImageLocal?handle=hein.slavery/ssactsengr0367&div=1&collection=&method=preview&ext=.png&size=3)