case COLMER versus COLMER all in court Lord chancellor Mr lutwych for the  defendant Thomas Colmer the husband this be a new case and of great  consequence and the plaintiff pray more than the court have ever yet grant see  ant Cas to have a separate maintenance allow her because of the in usage and  behaviour of the husband and of his voluntary and causeless desertion of her  whereas the fact be that he go to Maryland on his own affair be a merchant  that trade to and from thence and before his go he make a settlement in trust  for the payment of his debt which amount to above pound he have live beyond  his circumstance at the rate of pound a year and allow his wife pound a year  beside the interest of the pound and yet she run he great in debt so that this  be the case of a merchant go beyond sea to settle his affair who make a  provision for the payment of his debt in the mean time and there be no  foundation for this bill beside he offer to settle her in a house at Hornsey  and to provide her with lodging in town before he go off the case in vern be  very different from this and the want of those circumstance make this a very  new case in the case of lady Oxenden the husband bring a bill to have the  benefit of the wife portion and as where the husband file a bill to have the  benefit of a trust which he will not have at law the court have always oblige  he to make the wife a settlement so they think it much more reasonable in the  like case to compel he to allow her a maintenance there the wife have no  provision be part from the husband for his cruelty and he have a bill in court  to have the trust decree for he but here the husband have not exhibit a bill  and this matter be of the jurisdiction of the spiritual court the plaintiff  ought to sue her husband there for a restitution of conjugal right and as to  what they object that they can not serve he with the process of that court  sure they may as well as they have serve he with mosely report the process of  this court they have a order that service of the other defendant his trustee  and atorneys shall be good service of he and Maryland be within some diocese  and those who be there may be cite but suppose they can not must this court  therefore make decree for they they may as well say we can arrest a man on a  action at law because he be go abroad or absconds therefore pray let we be  relieve here but the spiritual court have a method of cite the party by put up  the process on the door of his parish church and if he do not appear they  seize his effect here and this court will enforce the sentence of the  spiritual court by a sequestration lady Oxendens be the first case of this  nature and in the mosely report er p case of William and Callow the husband  too have bring a bill which give the court a jurisdiction but there be no  precedent where a woman after have make a bargain for a particular part for  her separate estate sue in this court for a further maintenance can she be say  to be in a starve condition I argue thas on a supposition that they have make  out their case of cruelty and in usage but we have prove that she have no  reason to complain but have be treat with great indulgence and good nature and  the gratify her in her expense be one of the chief reason which oblige he to  go abroad which appear by the second article which the husband enter into pure  out of his kindness to the wife whereby he settle on her pound out of his own  estate and further agree that they shall not bar her of dower or of the share  of his personal estate she be entitle to by the custom of the city of London  or by the statute of distribution as the first article do and be she to be  relieve against the creditor on these article which be partly voluntary  especial when the creditor be not make party nay suppose her leave causeless  shall she set aside these deed make for the payment of his just debt when she  be already provide for what they further pray as to security be contrary to  the intent of both article for in the first he bind himself to the performance  in the penalty of pound and in the second by a covenant and therefore she must  be content with these security as be late adjudge by your lordship in the case  of Whitworth and Hallet and the covenant as to the diamond and jewel be the  same in both case ante case Mr mead No rule be more establish than that this  court will not better the security the party themselves have agree to accept  of and bill for that purpose have be always dismiss she be entitle to the  diamond and jewel on a contingency by a covenant of the husband which be no  specific lie as your lordship adjudge in the case of Whitworth and Hallet even  after the husband death though there the jewel mosely report and diamond be in  the wife possession too as also in the case of Gazalet we ante case case that  creditor by covenant or on a contingency can not come in under a commission of  bankruptcy as creditor till the covenant be break or the contingency happen so  the wife must rely on the security in the article and this court will be the  less Willing to interpose as the second article be voluntary so that the only  question in this case be whether the court can decree a provision to the wife  out of the husband estate assign to trustee for the payment of his debt it be  proper for the husband to go to Maryland to settle his affair and it be likely  he will return when he have do so and be can be say to have voluntary desert  her in order to distress her and as to cruelty they have not make out a single  instance but have only make proof of some angry and indecent expression the  evidence in lady Oxendens case will have be sufficient in the spiritual court  for a separation and the husband bring a bill to have the portion raise and  the Lord keeper say if a husband bring a bill for the wife portion the court  always oblige he to make her a settlement or some provision out of it and  shall not the court then when it see sufficient evidence for a divorce a month  thoro take care that the wife have a separate maintenance there the portion be  in trustee hand which the husband can not come at without the assistance of  this court but here the wife fortune have be already receive and there be no  article no trust to be execute and a bill never be bring even in behalf of a  infant improvident marry for a settlement or provision if the husband have get  the portion into his possession or power and in the case of William and Callow  the original bill be bring by the husband but they say here be a trust but it  be such a trust as the husband himself can vary nor can be bring such a bill  and how can the court say what be a reasonable maintenance where a man be in  trade and go abroad to get in his effect and she can be say in this case to be  in a starve condition beside the husband have agree to let his house before he  go to Maryland and the trustee offer her the key to take out what be her own  and they swear that they have pay in satisfaction of the debt more than they  have yet receive which show the deed be not fraudulent Lord chancellor this be  a case proper not only for the spiritual court but also for a court of  commonlaw it be a breach of the peace in the husband not to maintain his wife  and if article of the peace be exhibit by the wife against the husband and he  enter into a recognizance to not maintain her will be a forfeiture of his  recognizance by which he bind himself mosely report bene honest to draw  violently her if the plaintiff sue in the spiritual court it must be for a  restitution of conjugal duty mosely report er p and then for alimony I will  not enter into the question who be in fault in this case the witness say the  husband allow her pound a year beside her separate maintenance and some mark  indeed appear of his be a kind husband but they afterward fall out and it be  plain he voluntary leave her and go away without her knowledge and that when  she hear where he be go she follow he and that he make the master cut the  cable that she may not come into the ship and on her return she be deny  entrance into her own house and the servant she leave there be arrest in sham  action to get they out of the house so that she be turn out to the wide world  and it plain appear by the deed that he design to serve her so and to prevent  her from any maintenance out of his estate what must the wife do in this case  in sir Oliver butler case keb Cas the wife sue for alimony and the husband  plead that she have a separate maintenance of pound a year and the plea be  overrule and on a motion in b b for a prohibition it be deny by the court  first because a court of law can take no cognizance of it because it be a  trust and second because though the wife have a separate allowance she be  entitle to maintenance accord to the circumstance of the husband so that  accord to the opinion of the court of arch and of the king bench the estate of  the husband be to be the measure of alimony not to maintain a wife will in  other country be a sufficient cause of divorce a chain marriage the wife be to  be maintain accord to the port of her husband and as the husband here have  vest the property of all his estate in trustee the plaintiff have no remedy  but in this court wherefore it appear to the court that here be a voluntary  desertion of the husband and that the deed be fraudulent and execute with a  design to bar her of all maintenance and the defendant have not prove a debt  therefore it be to be refer to a master to see what be proper to be allow  chance of the plaintiff regard be have to the portion circumstance of the  husband till he shall return all part the bill must be dismiss vern Chan Cas  Chan Cas Nels Fol Rep in canc