See more on this subject, in the case of Harman and
others, versus Fisher, determined on the 14th
June 1774; upon the preference attempted to be
given by Mr. Fordyce to Mr. Fisher, one of his
creditors.

THOMPSON versus HERVEY, Esq.

1768.

HAGUE

v. ROLLESTON.

Voluntary pension from the Crown during pleasure, will not exempt the husband from

the debts of the wife.

ON N shewing cause against a motion for a new trial, in an action brought against the honourable Mr. Thomas Hervey, (second son of the late Earl of Bristol, and uncle to the present earl,) for lodging and necessaries for his wife, during her residence at Bristol, (which her health absolutely required;) wherein a verdict had been given for the plaintiff, against Mr. Hervey; it appeared from Lord Manfield's report, who tried the cause, and repeated the evidence, that she had herself paid part of the money, viz. what was due to the plaintiff for the former part of the time; and that she had a pension, during pleasure, from the crown, determinable at the will of the crown, of 3007. a year, granted to her in her own NAME, but not by any agreement or otherwise appropriated at all to her own USE. That at her return from Bristol, her husband shut his doors against her. That [2178] Mr. Hervey had never made or agreed to make any separate allowance to her, or had contributed any thing towards her support, since he had so slut his doors against her; nor had she any use of his table, servants, or equipage. And there was evidence given of his being reputed to have an income of about 18001. per Annum.

THE COURT, were extremely clear, that the hus- [Sec 1. Bosayband (Mr. Hervey) was liable to this action; and that 358. n.] the verdict obtained against him ought not to be set

ǎside,

Here is no agreement for a separation: but he has sent [4 Vin. 127. her adrift, by shutting his doors against her. He allows pl. 12.] her no separate maintenance, nor any support at all. And there is no pretence of this lodging and other support provided for her by the plaintiff, being improper for her degree and condition of life. And as she had no maintenance from her husband, nor admittance into his house, she was obliged to procure lodging and maintehance somewhere else. Every man is obliged to maintäin his wife.

The Pension is only a voluntary grace and bounty of the crown, and only during the pleasure of the crown; not what any creditor of her's, even for her necessary

1768.

THOMPSON.
V.

HERVEY.

subsistence suitable to her degree and rank of life, can be. supposed to give her credit upon.

Per Cur'. unanimously

RULE DISCHARGED.

See the case of Manby versus Scott, in 1 Siderfin 109. 1 Lev. 4. 1 Mod. 124. and other books. See also 1 Lord Raymond 444. Todd versus Stokes, and the case of Longworthy versus Hockmore, there cited.

Monday 8th
Feb. 1768.

REX versus Inhabitants of Great Bedwin.

See this case at large, in the quarto-edition of my SETPLEMENT-CASES, No. 188. Page 584. and abridged in the table to that book.

[2179] Friday, 12th Feb. 1768.

Bail allowed
in rape under
special circum-
stances.

REX versus Lord BALTIMORE.. (S. C. I BI. 648.)

REX versus ANNE DARBY ;

REX versus ELIZABETH GRIEFFENBURGA.

TH HE two women were brought up by Habeas Corpus; and appeared (upon the return) to be committed for being assisting aiding and abetting to Lord Baltimore in feloniously ravishing and carnally knowing Sarah Woodcock, spinster. They were committed as being charged upon the oath of the said Sarah Woodcock, for being feloniously assisting aiding and abetting him in feloniously ravishing and carnally knowing her against her will and consent, against the form of the Statute. But they were not charged, either by the oath or warrant of commitment, with being present: and therefore they were agreed to be only accessary before the fact.

The counsel for the prosecutrix, declaring "that the "prosecution was carried on merely for the sake of pub"lic justice, and that they had no other wish than to "obtain it"; declined either to consent to or oppose Lord Baltimore's being bailed'; but left it entirely to the discretion of the court, to act as they should think proper; as their sole point in view was that his lordship should be, at all events, amenable to justice.

Lord MANSFIELD approved of their conduct. At the same time, he observed that Lord Baltimore's volun

tary surrender was a strong indication that he had no in-'.
tention of absconding from justice: the probability
whereof was greatly heightened by the large property
which he was known to possess ; of which he would incur
a forfeiture, by running away.

1768.

REX

V.

E. GRIEF

Therefore-Let him be bailed by four Manucaptors, FENBURGH,
in £1000 a-piece; and himself, in £4000.

And let the two women be bound in £400 each; and
their securities (all of them together) in the like

sum.

Accordingly-Lord Baltimore entered into a recog-
nizance in £4000 and four Manucaptors in £1000
a-piece.

Anne Harvey (committed by the name of Darby) [2180]
in £400 and her four bail in £100 each.

And Elizabeth Grieffenburgh's four Manucaptors
(she being a married woman) in £200 a-piece.

The condition of the recognizances was "to appear
"at the next Assizes and general gaol-delivery
"for the county of Surrey."

SULYARD versus HARRIS.

THIS case was a point of practice, about delivering a

declaration by the by.

Declaration by the by may be It was a suit by bill, against Harris, by two persons, any other delivered by named Sulyard. Harris was served with a common plaintiff when process, not requiring special bail. He appeared at the the defendant return of the process and filed common bail. The next is in Court by day, Edward Sulyard alone, one of the two plaintiffs, without his companion, delivered a declaration by the by, against the defendant. And the defendant obtained Mr. Justice Yates's order to stay proceedings.

Sir Fletcher Norton argued on behalf of the defendant. He said, all process must be served. Now here is no service of process at the suit of Edward Sulyard alone.

If the appearance had been entered by the plaintiff's attorney, under the Statute, it had related only to plaintiff and defendant in that suit.

Here the defendant appeared himself: and he shall not be in a worse case, for doing so. Yet he would be so, if all mankind might deliver a declaration against him.

There is a great difference between being in actual custody of the marshal; and what is only legal custody. In the latter case, none but that same plaintiff can declare against him.

Bill.

1768.

SULYARD

In the case of Recks et Ux'. versus Robins, Trin. 10. G. 2. C. B. 1 Barnes 245. in 1st edition; 337. in 4to. edition; it was held "that a plaintiff can not declare by "the by, joined with his wife or any other person:" and the proceedings on the declaration by the by were stayed; [2181] there being no process to warrant it.

V.

HARRIS.

[ 2182]

The rule of this court, M. 10. G. 2. 1736. is, that where the plaintiff files common bail for the defendant, pursuant to the Act of 12 G. 1. c. 29. § 1. the defendant is not in court, as to any other person's suit, but only that of the plaintiff who has so filed common bail for

him.

Here, the defendant is a volunteer in appearing : there, he is forced into court.

When he comes voluntarily into court, he can not have a declaration by the by filed against him by a stranger. And here, the plaintiff is a stranger to the first suit.

Mr. Barnes, contra-The note of the case cited on the other side is in point for us. It was allowed to be the practice of the court, "that the plaintiff may, the same

And

term the process is returnable, declare against the de"fendant as often as he would, at his own suit." that is the present case. Here the plaintiff is not a stranger to the process; but one of the two persons who brought the latitat.

By Lilly's Practical Register 409 & 413. "If one be it in the custody of the marshal, any one may deliver a "declaration against him de bene esse.

Lord MANSFIELD-I consider the plaintiff as a stranger, in the same light that Sir Fletcher Norton has stated him: but the defendant was in court, by having filed Bail in the former action.

Mr. Justice YATES-The custody of the marshal is the foundation of this court's jurisdiction: when a defendant is in custody of the marshal, he is then present in court. But this man was not in actual custody of the marshal.

The MASTER (Mr. Owens) reported the practice to be "that where the proceeding is by bill, if a defendant " is in court, either by being in actual custody of the marshal, or by a voluntary appearance at any plaintiff's "suit, any other plaintiff is at liberty to deliver a decla"ration by the by against him, within the same term "wherein the writ was returnable."

1

Lord MANSFIELD asked if the other officers of the court were of the same opinion: and on their confirming it by their own

Per CUR'.

The RULE was made ABSOLUTE, for discharging the
Judge's order.

The End of Hilary Term 1768, 8 G. 3.

1768.

ADDENDUM TO THIS TERM.

413, and see Doug. 35, 37, 4 Ves. 848, 7,

Ves. 354.]

NOTE-The name of the case mentioned to be adjudged rs. C. Eq. Abr. in the Exchequer (ante, p. 2171.) was Christopher against Christopher and others, upon the will of Daniel Christopher; who had made a will in the time of a former wife, who died without issue; and he married a second wife, by whom he had issue, the plaintiff in the Exchequer, The decree was made on Saturday 6th July 1771. The court declare therein, "that the testator's second marriage, "and having issue by that marriage, is a total revocation "of the aforesaid will made by the said Daniel Christo"pher in 1757 ;" and thereupon order adjudge and decree" that the said plaintiff is well intitled to the said "several real estates the said Daniel Christopher died seised of."

F