Page:The English Reports v1 1900.pdf/572

Court of Equity to enforce. But should it for argument sake, be taken for granted, that the testator's being made free of the [263] city of London was part of the marriage agreement; yet he being now dead, it was become impossible that he should be so; and it appeared strange that a Court of Equity should consider a man to be a freeman of London as to one particular purpose only, viz. to restrain him from disposing of his personal estate as he had thought fit to do by his will, the inconveniences of which were found to be so great, that by a statute 11 George I. such who are actually freemen of the city, are now in a great measure set free from such restraint. It would not surely be insisted upon, that the testator in his life-time could, by virtue of this pretended agreement, have claimed or enjoyed any of the real privileges and advantages of a freeman of the city of London; and therefore it would be strange to say, that now he was dead, his personal estate should be subject to the custom of the city, of which, for the improvement of that estate, he could enjoy none of the privileges while alive. Nay, it might be questioned, whether by the settlement made previous to the testator's marriage, his widow was not barred of any customary share of his personal estate, even though he had actually been a freeman. That the decree being absolute, and the appellant being an infant at the time of its being pronounced, and no day being given him to shew cause after his coming of age, it was in that respect erroneous. That after so great a length of time, the testator might have reason to apprehend that he was under no obligation to become a freeman of London, and might thereby presume that he had no occasion to lay out his personal estate in the purchase of lands; upon which if he had so done, the custom of London could have had no effect.

Upon the hearing of the cause, the respondents produced the two following orders of the Court of Aldermen; viz.

1676, Novemb. 14. Ordered, That Mr. Frederick and Mr. Peake, having neither of them taken their freedoms of this city, notwithstanding several engagements by them heretofore made in this court, be warned to appear before this court on Thursday next.———1678, January 14. Ordered, That Mr. Frederick and Mr. Normansell have notice to appear before this court on this day se'nnight.

They also produced the order before stated, of the 15th of March 1680, and from these several orders would infer that the proposal of the Court of Aldermen to the testator for taking his freedom, at the time when they gave him the licence to marry, was intended for his wife's benefit; and that his promise so to do was part of his marriage agreement, and of the condition of the licence. But it did not appear that the testator attended the court upon either of the two first orders, and it was presumed he did not; nor did it appear that he had any notice to attend upon the day that the last order was made. And though, upon debate of the matter, the Court of Aldermen declared their opinion, that upon the testator's not having taken his freedom according to his promise, his wife, if she survived him, would not by the custom of London be entitled to the thirds of his personal estate; yet they did not declare their opinion that this promise was part of his marriage-agreement, or of the condition upon which the licence [264] was granted to marry; for in that case the court had a power of punishing him by fine and imprisonment at their discretion, and would no doubt have executed that power, as they did in the case of the marriage of Ann Marescoe, the sister of Leonora, when they fined David Gansell £1500 and committed him to Newgate till it was paid, for marrying her without the consent of the Court; and they also committed Jacob David to Newgate, who married the mother, until he paid a fine of £2000 for giving the said Ann in marriage. But after all their debate upon this case, they were so well satisfied that the making a suitable settlement on Leonora was the single condition of their licence to the testator to marry her, and that the promise of taking up his freedom was but collateral; that the only order they made was, to refer it to the Recorder and Common Serjeant, to see if the settlement and marriage-agreement were made according to the direction and intent of the Court. And after this, nothing further was done in the matter, either by the Court of Aldermen, or any of Leonora's relations on her behalf, till the time of the testator's death, which was forty years afterwards; and even though there were such unhappy differences between him and her, as have been already stated.