atkins case head versus head may S c Ves ante the deposition of a wife of a  prochein any can be read as the husband be liable to cost the bill be bring  for the arrear and grow payment of a annuity of four hundred pound ayear from  the defendant sir Francis head pursuant to a agreement between the plaintiff  and the defendant for that purpose and to establish the agreement for a  separate maintenance Mr attorney general for the plaintiff cite the case of  Oxenden versus Oxenden vern and ceiling versus Crawley ib and to draw close  versus to draw close Prec in Chan pale yellow Eq r p the defendant counsel  object to the read the deposition of jane Genew the wife of John Genew as her  husband be the prochein any and liable to cost Lord chancellor allow the  objection the counsel for the plaintiff read next sir Francis head letter to  sir William boyce lady head father be a agreement to pay lady head four  hundred pound ayear date August which be as follow dear sir William I shall  always with pleasure remember ray dear Quinettes many good quality and be far  from impute her misfortune as fault but as it will be much easy for I not to  be a constant witness to what we can neither of we help I be Willing to send  her pound and no more between this and Christmas next and to continue her such  quarterly payment when it shall best suit my convenience so long as we shall  continue separate with this one proviso that if you shall think at any time my  pretty gabrielle shall want any kind of instruction she may be send to I who  will always receive and instruct her as my child accord to my parental duty  and have nothing further to add but my prayer that we may all enjoy quiet here  and everlasting quiet hereafter and be dear sir William your most dutiful son  c Francis head atkins the plaintiff by her bill seek to establish this as a  agreement for her separate maintenance and to secure the payment of four  hundred pound ayear for her life Mr solicitor general of the same side by a  subsequent letter date the d of September to lady head sir Francis say upon  send a receipt you may have your money on demand what be your money why the  money he have agree to pay her the pretence of her be disorder in her sense be  as long ago as and subsequent to that for four year here be by several letter  a acknowledgement the agreement be subsist and payment in pursuance of it and  the defendant never offer to take her home till t bill file there be evidence  too of sir Francis endeavour to convey her to a madhouse without give her the  least notice and on her application a writ of supplicavit issue and though by  his answer now he offer to take her home he say at the same time he shall shut  her up consider her as mad this be the very thing which the court atkins er p  attempt to obviate by the supplicavit and notwithstanding sir Francis move  that it may be discharge yet your lordship refuse it to show that a woman  after a separation be not oblige to go home to her husband when he shall think  proper to take her back again unless there be a prospect of live happy and in  harmony together he state the case of steal versus Crawley vern Mr brown for  the defendant sir Francis head marry in lady head fortune be pound down and  pound more on the death of the survivor of sir William and lady boyce to draw  close versus to draw close be a case with very different circumstance for  there be a clear agreement for a separation and the behaviour between the  husband and wife both equal bad he cite the case of whorwood versus whorwood  in Charles Cas where after a decree for a separate maintenance the court on a  bill of revivor bring will not continue it as the husband offer to take her  back but in the case of sir George Oxenden cite for the plaintiff it do not  appear the husband offer to take her back again atkins in all the case cite or  that can be cite where a agreement for a separate maintenance have be decree a  clear agreement have be manifest to the court but in the present case it be  for far from be so for in the letter to sir William boyce sir Francis do not  say so long as we shall live separate but continue separate only Lord  chancellor stop Mr clarke who be counsel for the defendant from go on to show  that this be not original intend as a agreement to continue during their joint  life because he do not see it at all in that light but the material question  will be whether the occasion for this separation cease or not Mr clarke cite  octavo Chanc Rep a bill be bring by a husband to set aside a decree of  separation obtain during the interregnum Lord chancellor Clarendon refer it to  the twelve judge to certify their opinion whether the act of parliament have  confirm the judicial proceed before the restoration and they be of opinion it  have this case of whorwood versus whorwood come on again before Lord keeper  Bridgeman and be mention by sir Lionel Jenkins in his life and letter p the  court do not indeed reverse the decree but then they let it lie dormant and if  the wife do not return to the husband leave it open to proceed against her in  the ecclesiastical court for a restitution of conjugal right Lord Hardwicke to  give the friend of each side a opportunity of interfere in order to bring  about a reconciliation adjourn the cause from time to time till the d of July  and then give his opinion two question arise upon this case first whether here  be any such agreement between the party for a perpetual separation and  maintenance as this court will establish second whether in case there be no  such agreement sir Francis have by his behaviour to lady head give reason for  the court to decree her a separate maintenance now as to the first of these  two question here be no agreement for the party to live separate and for sir  Francis make this allowance for alimony but mere during a occasional absence  and for his lady support while that last it be therefore to be consider  whether any thing have happen since the make of this agreement to put a end to  it and to induce the court to decree the maintenance for the future atkins and  what effect this consideration will have upon the general relief pray by the  bill by which liberty be require for lady head to live separate and that the  court will decree her husband to pay her maintenance and likewise what effect  this will have upon the arrear already due as to the liberty pray it be not in  the power of the court to decree it and I do not find that this court ever  make a decree for establish a perpetual separation betwixt husband and wife or  to compel a husband to pay a separate maintenance to his wife unless upon a  agreement between they and even upon this unwilling see Watkins v Watkins atk  Fonb treatise of equity vol the agreement betwixt sir Francis and lady head be  only for the payment of a maintenance during a occasional absence now consider  what have be do to put a end to this agreement Lord Hardwicke then state the  evidence of lady head disorder and sir Francis atkins er p intention of carry  her by force to a madhouse and then go on as follow I can say that sir Francis  behaviour upon this occasion be proper he shall have first go and satisfy  himself of my lady be condition before he have make such a attempt but yet  upon the circumstance f her conduct I will not say that this be such n act of  cruelty as will forfeit the right and authority of a husband or will be  sufficient ground for the spiritual court to decree alimony and separationupon  the point of the supplicavit grant to lady head be carry too far the have  obtain a supplicavit be no reason that a wife shall elope from a husband for  it be a security take for the wife upon a supposition that they be to live  together he then state the case of Whorewood versus Whorewood Ch Cas and the  opinion of the Lord keeper and Lord Shaftsbury and observe upon Lord  shaftsbury send the party to their remedy in the ecclesiastical court that it  must have be ground upon this that as the court of chancery have succeed to  the jurisdiction of the spiritual court in matter of alimony c during the  rebellion a decree then make by the court of chancery in pursuance of this  jurisdiction be to be take as a sentence of the spiritual court after their  jurisdiction be restore and to be refer thither for its examination then his  lordship read the passage from sir leoline jenkins letter from the word these  be either cruelty so call to the word the decree in question atkins his  lordship then repeat the reason give in the book for the opinion in that case  and apply they to the present by save in this case nothing appear to show the  husband have render himself incapable of demand the return of his wife and  that as the wife appear unreasonable averse from return he can not make a  decree for the continuance of the alimony as to the arrear of the separate  maintenance he decree they to be pay because he say some thing which have  happen on sir Francis part be a excuse for my lady be not return to he till  this judicial offer of receive her have be make by the answer of the husband  as for instance sir Francis letter his attempt to carry her to a madhouse c  and that these be very good pretence for not put herself under his power  especial where the court have think there be ground for grant her a  supplicavit his lordship decree the arrear to be pay to lady head but that sir  Francis have offer to receive her again he shall receive and treat her as his  wife if she will return but in case she do not return in a month the  maintenance shall cease for the future and on the other hand if she return  home and the defendant refuse to receive maintain and treat her as his wife  the separate maintenance shall then continue Reg lib a fol in Guth v Guth bro  Charles Rep the court decree a specific performance of article of separation  though the husband by his answer offer to receive his wife again vide ball v  Montgomery bro Charles Rep