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mentions, that while they were at dinner in the housekeeper's room, Lord Westmeath looked in, and desired Wetherly to come to him after dinner: "from his manner she judged something was the matter; she went to her own room, Lord Westmeath came there, and asked where the housekeeper kept her accounts and keys? she said she did not know; he was apparently very angry and disturbed. In a little while deponent heard a great noise below, as of bursting open locks and bolts violently -a crash; she was alarmed, and staid where she was, till called down stairs by Lady Westmeath's voice." Wetherly then gives the following statement: "After she had dined she went to Lord Westmeath, as he had desired; his Lordship spoke to her in the dining room; asked her what wages were due to her, she told him how many months; he said he was going to pay and discharge her; desired to have the books, keys, and accounts: deponent told his Lordship she was Lady Westmeath's servant, and could not give them up unless she was present, and ordered her. His Lordship was in a great passion, flew out at the deponent, called a man servant, and sent him for a constable; said he would take them; he turned from her; she was just by the door, and as he had used personal violence to her once before, she did not know but he might do it again, so she made her escape, and got out of the house; she went to Clarges Street, to Mr. Wood's, where Lady Westmeath was, and did not return to Bolton Street for about eleven days, when she went to fetch her own things, when his Lordship returned some letters and papers which were her own property, and some money which belonged to her."

The next witness, who speaks to the same affair, is Miss Weldon, who had been governess in Mr. Wood's family, and who returned to Bolton Street with Lady Westmeath on this occasion: "Deponent accompanied Lady Westmeath to Bolton Street; when they got there, Lady Westmeath went immediately into the housekeeper's room, followed by the deponent. Immediately afterwards Lord Westmeath entered. It was plain the presses and drawers had been forcibly opened. Lord Westmeath was in a most violent and extraordinary passion, amounting to almost fury, though apparently in a degree exhausted; he was as pale as a sheet of writing paper, his lip quivered, his whole frame shook with rage, his shirt collar unbuttoned, and his whole appearance that of a man greatly agitated and irritated. Lady Westmeath asked him, with greater coolness than she could have expected, what he had been about; Lord Westmeath replied, his voice tremulous with passion, I have been breaking open your presses, and I will do it again. I will show you that I will be master in this house. Lady Westmeath said, that if she was to be exposed to such horrors, she must send to her trustees for protection. Lord Westmeath said, he should like to see the trustees that would dare to interfere with him. Upon this, Lady Westmeath left the room; she was followed by Lord Westmeath: deponent remained in the housekeeper's room. In about ten minutes Lord Westmeath came back, and said, as he supposed she was there as a spy, must desire her to quit the house. She expressed her readiness, if Lady Westmeath consented, but otherwise she would not go. Lord Westmeath left the room. Lady Westmeath came there, entreated deponent not to leave her, saying she would come back to deponent in a few minutes; after being absent about a quarter of an hour she returned." They waited in the drawing room till her solicitor, Mr. Talbot,

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came; and having consulted with him, they went to Mr. Wood's house in Clarges Street. "Lady Westmeath was certainly under alarm, and terrified, as it appeared to the deponent, but preserved her presence of mind. She was cool, and spoke calmly; but it appeared to the deponent evident, that she did not consider herself safe in the house in Bolton Street; or under the same roof with Lord Westmeath; and deponent saith that, as far as she could judge, her alarm was well founded." A short passage in Johnson's evidence concludes the narrative. "On being called by Lady Westmeath, she went to her in her bed-room. Lord Westmeath was with her ladyship; he said, on deponent's coming in, what do you want your maid for,-as a witness against me? Lady Westmeath said, whenever she had occasion for her, and wanted her, she would call her; and she added, I desire, Lord Westmeath, you will leave my room. Upon which, he said he would not; that he would come into her room when he pleased, and stay as long as he pleased; that he would have no more of these separate doings; that he would be master of his own house; that he would go down stairs and turn Miss Weldon out of the house, and would have no more interference from that family in his concerns, and then left the room, apparently to execute his purpose on Miss Weldon. Deponent then assisted her mistress in moving her boxes, which had papers in them, and other things, to deponent's room, where Lady Westmeath filled her pockets, gave deponent as many as she could dispose of about her person, dispatched deponent to seek the children, who were out walking, and send them to Lady Salisbury's, for whom deponent received a note, and she then left the house. That on the occasion deposed of, Lady Westmeath was undoubtedly very much alarmed at his Lordship; the whole scene was very alarming. Lady Westmeath is a woman of wonderful self-possession, but she could not conceal that she was alarmed on the occasion."

Here, then, the scene closes; and the Court is to decide whether, under all the circumstances of the whole case, Lady Westmeath was justified in quitting cohabitation. Without recapitulating the facts of this painful history, which the Court has gone through with much detail, in order to mark distinctly the grounds upon which its conclusion must rest; but looking to the ungovernable violence of this husband's temper on these several occasions-looking to the former acts into which that temper had betrayed him-looking to his conduct at the separation of beds in May 1818-looking to these final transactions in the face of all his engagements-his resumption of his marital authority by forcible means-his refusal to quit her bed-room-his declaration, "that he would come into her room when he pleased, and stay in it as long as he pleased, that he would have no more of these separate doings," I do think that she had a reasonable foundation for an apprehension of renewed personal violence. I so far join in that apprehension as to think, and be morally convinced by the evidence, that if she had submitted to a continuance of domestic society under those terms, and had allowed of further matrimonial cohabitation, there was great risk, and a strong probability, that she would have been exposed to a repetition of acts of personal injury. I am of opinion that the case fully comes up to the requisites of the law, as laid down in the several adjudged cases to which I have referred, and more especially, to use the words of Lord Stowell," that the passions of the husband are so much out of his own VOL. IV.

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control, that it is inconsistent with the personal safety of the wife to continue in his society."

If such was her danger at that time, has the Court any reason to conclude, that she would be in a state of greater security if compelled now to return to his house and home? Has he shown that he is become sensible of his past misconduct? Is he emendatus? Are his mind and disposition softened down into conjugal kindness? Where are the proofs of it?

After the separation, he carries his infant son to Clonyn, where the child dies just before he becomes a year old. Lady Westmeath, on hearing of the illness, with the natural feelings of a mother, sets off, accompanied by Lord Cranborne, her brother, and her maid, but arrives the day after the child died; she stays a few hours, and returns to England.

Till 1821, Lady Rosa, then about six or seven years of age, had been living with her mother, and in charge of a governess. In that year Lord Westmeath was residing at Mrs. Winsor's, in Bolton Street. The child is brought frequently by the governess to visit him; and one day the child is detained by Lord Westmeath, the governess dismissed without her, and in about ten days the child sent out of town, to a friend's house in Hampshire. This seems to have been done without the least notice, or previous preparation of the mother for the infliction of such a stroke. She applies to a Court of Justice to regain the possession: but the rights of a father are too strong to enable that Court to afford her any relief. His Lordship not only still persists in the same course, but will not allow Lady Westmeath even to see the child, or at least would not as late as the year 1824; for his own witness, Lady Salisbury, who was examined in March, 1824, and who was most likely to be correctly informed as to the fact, states, on the twenty-first interrogatory, "that respondent believes, that the producent, Lord Westmeath, has prohibited the ministrant, Lady Westmeath, from seeing her child, Lady Rosa Nugent, and has prevented her from so doing." Of the reason for this course of conduct respecting the little girl, the Court may not be fully apprised; but, judging from what appears in the suit, the smallest speck is not attempted to be pointed out in the moral character of Lady Westmeath. deed, the very prayer, made in this suit for restitution of conjugal rights, to compel her to return to cohabitation, implies necessarily, that he has no imputation to make against her, either as a wife, or a mother. The Court does not venture to blame Lord Westmeath in this respect, because all the facts are not before it; but as far as does appear, his conduct, in this particular, furnishes no affirmative evidence that he is disposed to show greater kindness and forbearance towards this lady. The Court carries the inference no further.

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Again, the parties have been engaged in litigation with each other from the moment of separation to the present time; not in one court only, but in all courts-in equity, common law. and ecclesiastical courts; and in those several jurisdictions, Lord Westmeath has been the party commencing the proceedings. These circumstances are not likely to engender more good-will and cordiality; they do not operate as sweeteners to prepare the parties for the performance of matrimonial duties with affection and consideration.

Looking, therefore, to the present time, as well as to the time of their actual separation, I see no prospect of their practically living together in

any degree of conjugal happiness, and in the proper discharge of the obligations of the marriage state; but looking at the case not practically, but strictly in a legal view, I am of opinion, that to compel the wife to return to cohabitation, would but expose her to the risk and danger of renewed violence, and personal injury.

In arriving at this conclusion, I trust that I have proceeded with due caution, weighing and considering again and again every transaction, with its accompanying circumstances, and every branch of the evidence in proof of them, and endeavouring to draw impartial inferences from the whole. I have formed my opinion, not only with the usual care and attention which the ordinary justice due to the parties would require, but with considerable hesitation and unaffected diffidence, on account of my respect for the learned Judge who, in this case, has come to a different decision; but after mature deliberation, finding myself compelled to dissent, on this latter part of the case, from the judgment already given, I must not shrink from the duty which is cast upon me of reversing the sentence: for to shrink from the discharge of that official duty, would be to defeat the very remedy by appeal which is afforded by the law.

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I must, therefore, reverse the sentence; pronounce that Lady Westmeath has sufficiently proved her first allegation, charging her husband with cruelty, and is, on that account, entitled to a sentence of separation.

This sentence was affirmed by the High Court of Delegates, to which Lord Westmeath appealed, on the 18th of April 1828; and an application for a Commission of Review was rejected on the 24th of June, 1829.

MIDDLETON v. MIDDLETON.(a)—p. 134.

In a suit for separation by reason of the wife's adultery, (publication having passed), the Court on an affidavit that material facts are newly discovered, may, in its discretion, allow the cause to be opened for the purpose of pleading further adultery. The renouncing all further allegations, unless exceptive, is the virtual conclusion of the principal cause as to the rights of parties: leave for further pleading is in the discretion of the Court.

In suits for adultery the party is not limited to the contents of the libel, but may plead fresh charges, and obtain a sentence on facts not existing at the commencement of the suit; but publication is a bar to further pleadings as of right.

The Court is not legally obliged to defer to an appeal till an inhibition is served; nor is there any distinction whether all the acts be done on the day the appeal is asserted, or some on a subsequent day: therefore, the Court having overruled the objections to the admission of an allegation, on the following Court-day admitted the allegation, notwithstanding an appeal had, in the interim, been asserted.

Material facts, newly come to the knowledge of the party, may be pleaded after publication.

Before a party can plead after publication, he must show (generally by affidavit) that the facts came to his knowledge since his former plea: the Court then ought to admit a plea of such facts.

THIS was a suit, brought by the husband against the wife, for adultery.

In Trinity Term, 1793, the libel; on the third session of Hilary

(a) Vid. sup. Hamerton v. Hamerton, (Arches, Mich. T.) p. 17.

Term, 1794, an allegation, on the part of the wife; and, on the 5th of June, in that year, a responsive allegation on behalf of the husband, were admitted. On the third session of Trinity Term, 9th of July, 1794, publication was decreed; and, on the fourth session, both Proctors declared, that they gave no allegation unless exceptive to the witnesses; and, on the by-day after Michaelmas Term, viz. the 5th of December, an exceptive allegation, given in by the wife, was admitted. On this exceptive plea, publication of the depositions had not been prayed, nor had the cause been concluded, when on the second session of Hilary Term, 1795, the Proctor for the husband brought in an affidavit of Mr. Middleton and himself, stating, "that since the publication of the depositions, evidence of certain facts of adultery had come to their knowÎedge," and they prayed the cause to be opened for the purpose of giv ing an allegation in the principal cause. This was objected to on behalf of the wife; and the Judge assigned to hear, on act on petition, on the next court-day. On the third session, this assignation was continued; and the allegation being brought in, the Court further assigned to hear on the admission thereof on the fourth session, if the petition did not obstruct.

On that day, after hearing Counsel on both sides, the Court thus delivered its opinion.

JUDGMENT.

Sir WILLIAM SCOTT (Lord Stowell).

I see no foundation for any imputations of delay on either party: the citation was taken out in Easter Term, 1793; a libel, containing a large mass of matter, was given in on the first session of Trinity Term, and it is said that seventy witnesses have been examined: the production of so many, and these too on commissions in the country, did not exceed the usual allowance of time. The wife gave in her allegation early, and proceeded with great dispatch in the examination of her witnesses, and a responsive allegation was brought in on the 5th of June, 1794. The parties subsequently renounced all further allegations, unless exceptive, which, undoubtedly, is the virtual conclusion of the principal cause, as far as the rights of parties extend. They cannot retract without the leave of the Court; and the question is, whether the Court, in its discretion, shall under the circumstances listen to the application and allow the party to plead.

The allegation I have not seen; but the affidavit, sworn to by Mr. Middleton and by his Proctor, states, "that since the responsive plea has been given in, Mrs. Middleton, while residing at Lowestoff, has been observed to carry on a secret intercourse with a stranger of low condition, who had no acquaintance but her servants; that they had reason to suspect that this was the person mentioned in the proceedings as the adulterer, but they could not obtain the proofs till January; that they had since ascertained that the stranger was the alleged adulterer, and they had now collected facts which they believe are relevant and to be introduced, and that they are confident they shall be able to prove the same.

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No doubt these matters are relevant, and that the party had a right to plead them before publication on the strictest principles of law and justice. It is every day's practice to introduce charges of adultery com

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