the evidence, on this part of the case was, that the house was out of repair, and the witnesses differed as to the quantum of furniture. This charge fell by its own weakness. After quitting Edmonthorpe, Lady Dysart resided with her father till January, 1822, when she joined her husband at Irnham, where she remained till August. He could not separate what the witnesses stated with respect to this period from that which applied to the interval between July, 1823, and April, 1824. The first transaction which fell within the class of legal cruelty was spoken to by the witness Elizabeth Maginly, who stated that she heard an alter cation between Lord and Lady Dysart; that she went to the door, which she found locked, but it was opened by Lord Dysart, when she found Lady Dysart in a fainting fit; that she saw no violence, but that the child (about three years old) stamped its little feet with indignation against his father. He (Dr. Lushington) was of opinion that this evidence was not sufficient to establish an act of cruelty. There was no proof of personal violence or of threats, but merely of an altercation and a fainting fit; and as to the conduct of the child, the Court could ground no conclusion upon that. He next came to what might be termed the rush light scene. The same witness stated that she heard Lord Dysart quarrelling with her Ladyship, being in a violent passion; that she heard her cry Murder!”——that Lord Dysart threatened to throw the witness over the banisters if she came up stairs, and to serve his brother, Mr. Felix Tollemache, the same if he interfered; that Lady Dysart was afterwards brought down by Lord Dysart and

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Mr. Tollemache, apparently lifeless; that a medical man was sent for, who sent a lotion, and Lady Dysart told her that she had received a blow from Lord Dysart in the lower part of her body; that the witness undressed her, but did not see it. This occurrence approached more closely to a case of personal ill-usage; the evidence, if true, did prove that some injury had been received by Lady Dysart in the quarrel, though he entertained some doubt whether he could admit her declaration; for non constat when it was made, and to make it evidence it must be recenti facto. The other witness spoke only to the commencement of the transaction, namely, that Lady Dysart went up to Lord Dysart for a rushlight, it being against his wishes that she should come up stairs. Were this a single point on which the whole case might turn, the question might admit of great doubt; but he must look at the whole circumstances, and then give this incident the weight to which it was entitled. Lord Dysart went to reside at the cottage at Corby, in April, 1824, and his conduct whilst there was marked by circumstances of extraordinary eccentricity. The Court was not called upon to find any explanation, and he would not travel out of his way to try to make the discovery. When he found conduct towards a wife likely to prove dangerous to her safety, but not in other cases, he should consider such conduct within his cognizance, whatever might have been the cause, whether arising from natural violence of disposition, from want of moral control, or from eccentricity. It was for him to consider the conduct itself and its possible consequences; the motives

and causes could not hold the hand of the Court unless the wife was to blame. In the present case, such residence and mode of life, twenty years past, did not affect the suit directly, and indirectly only so far as it was one of the ingredients of the case. In 1825, Lady Dysart went to Buckminster, by desire of some of Lord Dysart's family. Her second visit took place in 1826, and she continued there till the spring of 1827, and during this renewed cohabitation legal cruelty was charged against Lord Dysart. The only witness to prove the charge was Elizabeth Parker, a housemaid in the late Lord Huntingtower's family, since in the service of Mrs. Toone, Lady Dysart's mother. She deposed to very strange habits Lord Dysart then indulged in, which, though they showed a disregard of his wife's comforts, could not be called legal cruelty. The language which Lord Dysart applied to Lady Dysart was certainly, if this witness were credited, of the foulest and most disgraceful description, showing that at the time it was used he was totally forgetful of all respect for himself and decency towards his wife. Such language would induce the Court more readily to believe the evidence of per sonal violence. This witness did This witness did not see actual violence, but she heard Lady Dysart scream "Murder," and had seen the marks of pinches and bruises, which must have been caused by violence. Lady Dysart quitted Buckminster in June 1827, and did not return till 1834, having resided during the seven years with her family, and at their expense. In 1833, Lord Huntingtower died; and the cohabitation was renewed in Hyde Park Place. Lady Dysart returned

to Buckminster in 1836. He now had to consider whether any such acts of cruelty were committed as would revive former acts, if any, for the return to cohabitation operated as a legal condonation of the past. He should divide the subject-matter of the alleged occurrences between July, 1836, and April, 1837, into, first, general ill-treatment, including words of abuse and improper deprivations; and secondly, conduct directly falling within the definition of legal cruelty. Mrs. Hill was the only witness produced by Lady Dysart. From her evidence it appeared that Lord Dysart kept every thing under his own control at Buckminster, including matters generally committed to the charge of a lady; that the house was dilapidated; that there was but one sitting-room; that the furniture was not arranged with any regard to Lady Dysart's comfort; a very scarce supply of coals, and, in one particular, a disregard of Lady Dysart's health and comfort, if this witness spoke truly, which was very disgusting; and this for the almost incredible purpose of obtaining manure for the land! Conduct of this description was petty tyranny; it might show either a miserly spirit of penuriousness, or a very peculiar disposition of mind, or a very culpable indifference to the happiness and comfort of Lady Dysart; it might be a breach of moral obligations, but he was not prepared to say it came within the limits of legal cruelty. But these circumstances were not unimportant with regard to other matters, as indicia of the mind and disposition, and of the animus with which they were done. Under this head he must notice the language sworn by Hill to have been

used by Lord Dysart to his wife. He would not read the very words. If under any circumstances Lord Dysart did so entirely forget what was due to his wife, against whose moral conduct there was not the slightest impeachment. no words of condemnation would be too strong; and though the expressions did not contain threats, (though some approach thereto,) such a total abandonment of selfcontrol would be a circumstance admissible to show the danger of future cohabitation. The learned judge then read the evidence of Mrs. Hill, detailing a scene in which Lord Dysart, lying on his back on the floor, was holding Lady Dysart by the wrists, she lying upon her back on his breast; the witness observing that they were laughing part of the time. The learned judge was of opinion that force was here applied for an object not justifiable, namely, to compel Lady Dysart to make some promise; but he was not clear that both parties were not equally to blame-that it was not a species of horse-play, in which both participated, and consequently it was not an act of cruelty. The most important transaction was that of the 23rd of January. Mrs. Hill hearing Lady Dysart call out "Murder!" went into the room and found Lord Dysart sitting down and holding Lady Dysart in a manner which she described as cruel and brutal; he held her for an hour and a half; she feared that he would dash his wife's brains out. If this evidence was credible, and not afterwards corrected and contradicted, he was of opinion that the acts constituted legal cruelty. On cross-examination, however, this witness

admitted that she laughed at some of the expressions of Lord Dysart. The origin of this dispute was admitted by Lord Dysart to have been his wife's throwing slops out of window; but he charged his wife with being the aggressor, and stated that the restraint imposed upon her was in self-defence. If all the facts set forth in Lord Dysart's answer were true, they did to a considerable degree alter the impression made by Hill's evidence; but still the most prudent conduct on the part of Lord Dysart would have been to leave the scene of disturbance. Before he expressed any opinion as to the effect of the evidence, and its legal consequences, he must consider the conduct of Lady Dysart With regard to this lady's general conduct, whether provoking or not, the evidence was not satisfactory or conclusive. All agreed that she was a kind mistress, but some said that she was disposed to irritate Lord Dysart. He (Dr. Lushing ton) could not so far lose sight of the nature of the establishment and general conduct of Lord Dysart as not to know that Lady Dysart must have had constant cause for irritation; but he by no means on that account justified her in the use of intemperate and improper language, much less any personal violence. There was an expression attributed to Lady Dysart by two witnesses of a disgusting character. There was no doubt positive evidence of the utterance of the words, but he must add that the evidence was in many repects deficient in probability. Nothing gave rise to those expressions, and what was most wonderful, no anger was excited. This was not credible; Lord Dysart was a pas

sionate man did his anger slumber then when the charge, if made, would have roused the most passive and inert of human kind? The learned judge then commented at some length upon the letter from Lady Dysart, noticing the observation made in argument, that Lord Dysart had had an undue advantage in having obtained his own letters back from his wife, which were not produced. This observation was not without weight; but had an application been made to the Court, it would have exerted its authority to obtain them. The question he had to decide was, had the acts done by Lord Dysart rendered future cohabitation unsafe? If he was not satisfied of the affirmative, he would not pronounce the decree. He must be further satisfied that this danger had arisen without provocation on the part of Lady Dysart, and notwithstanding her correct performance of the duties of a wife, amongst which is obedience in all things not sinful. If a wife could secure her own safety by lawful obedience and proper self-command, she had no right to come to this Court, which afforded its aid only where the necessity for its interference was absolutely proved. He saw very much to blame in the conduct of both parties-great and grievous errors, which had blighted all the fair prospects which wealth, rank, and station combined to form. He thought Lady Dysart to blame for absenting herself so long from her husband's roof; for not conforming more to his tastes and habits, which, strange and eccentric as they were, it was still her duty to have conformed to to the utmost. He knew she had a hard task to

perform with habits and views of inclination so directly opposite; but the path of duty was often beset with thorns. In one word, Lady Dysart had failed in the first great duty of submission. With regard to Lord Dysart, he had, no doubt, a right to choose his own mode and style of life; but, morally speaking, he was not justified in all the petty annoyances and deprivations he inflicted upon Lady Dysart; above all, he was not justified in the gross, and he must add, infamous language, he applied to her; he was not justified in degrading her as he did from her proper sphere as his wife. His conduct had alienated her affections, and contributed its full share to the disgrace of the present exposure. But on such grounds alone no judgment could be grounded. Could he believe that Lady Dysart expected serious personal injury which she could not avoid by her own patience and abstinence? Did he in any part of her conduct and correspondence, throughout the whole period of her married life, see signs of bodily fear or apprehension? Did even her conduct since the separation carry with it any such proof? He thought decidedly not. Did Lord Dysart in the midst of his wildest eccentricities show any disposition deliberately, without provocation, to inflict personal violence? He thought not; though he did not acquit him of intemperate and most culpable conduct. But he could not come to the conclusion that a return to cohabitation would expose to danger or reasonable risk the personal safety of Lady Dysart, and if not convinced of such danger or risk, he was bound to refuse the prayer for a

divorce. It had been contended that he might hold his hand, and make a decree in favour of neither party. No such case had occurred, though he would not say that extraordinary and unforeseen circumstances might not justify so novel a proceeding; but it must be founded on the same basisthe improbability of safe cohabitation. This, however, was not such a case; for, in his judgment, there was no risk of personal violence if Lady Dysart had conducted herself with prudence and submission. He must, therefore, pronounce for the prayer of Lord Dysart.

IN THE QUEEN'S BENCH.

Dec. 2.

(Sittings at Nisi Prius, before Lord Denman and a Special Jury.)

ALEXANDER BERESFORD HOPE V. HARMER AND OTHERS, EXECUTORS OF HENRY PHILIP HOPE.

This was an action of trover brought by the third son of Lady Beresford against the executors of his uncle, to recover a cabinet of diamonds and other precious stones, estimated to be worth about 50,000l., and which the plaintiff claimed under a deed of gift executed by the deceased in favour of the plaintiff in April,

1838.

Mr. Kelly (with whom were Mr. Serjeant Channell, Mr. E. V. Williams, and Mr. J. W. Smith) stated the case upon the part of the plaintiff.

It appeared from the statement of the learned counsel, that the deceased, Mr. Henry Philip Hope, who was the brother of the late

Mr. Thomas Hope, of Duchess Street, was, like all the other members of the family, a person of large wealth, of which he expended a considerable portion in gratifying his inclination for articles of taste and vertu. He had a most valuable and peculiar collection of Dutch pictures, another of bronzes, one of china, and a collection of diamonds and other jewels, worth about 40,000l., which were the subject of the present action. He had three nephews, sons of Mr. Thomas Hope, and of the present Lady Beresford, with all of whom he lived upon affectionate terms, and who were all the objects of his bounty, and to whom he made considerable bequests by his will. To the eldest, Mr. Henry Thomas Hope, he gave his collection of pictures; to the second, Mr. Adrian Hope, he gave the bronzes and china; and to the third, who was the present plaintiff, he gave the collection of precious stones which were the subject of the present action. The manner in which he conveyed the jewels to the plaintiff was, however, different from that in which he transferred the other legacies to the other brothers. In 1838, he executed a deed of gift, in consideration of natural love and affection, to Mr. Alexander Beresford Hope, whereby he conveyed to him absolutely and irrevocably the jewels in question, which he described in the deed as being contained in a casket of certain dimensions. The description of the casket being, however, inaccurate in this respect, was amended by the donor, who wrote the true dimensions over the original words, and authenticated the alterations in the