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FREDERICK v. FREDERICK [1731]
I BROWN.

On the 10th of December 1728, the Master made his report, and thereby certified, that £2854 10s. would on the 14th of January 1728, be coming due to the respondent for principal money, interest and costs, pursuant to the decree; and that the appellant, after the death of the Marquis, did possess herself of his personal estate, amounting to £5609 6s. 2d. out of which she had paid £733 18s. 2d. so that there remained in the appellants hands £4875 8s. out of which she was to pay the before-mentioned sum of £2854 10s. to the respondent, according to the decree.

The appellants apprehending this decree to be erroneous, appealed from it; and on their behalf it was insisted (P. Yorke, C. Talbot), that the respondent's demand as well by her cross bill, as in her action at law, was founded on the bond; in the proof of the execution whereof she had failed both at law and in equity. That the deed on which the decree was founded, appeared to bear even date with the bond, to which there were two witnesses, and yet the deed was attested by one of those witnesses only, which rendered the execution of it suspicious; and even the proof of such execution depended on the proof of the hand-writing of that single witness, who was now dead. That, in this case, no assistance ought to be given in a Court of Equity, in favour of a demand for so large a sum of money, and founded on such a consideration; and in regard it was also in proof, that the respondent came into the late Marquis's family in a very low and mean condition, and afterwards made several considerable advantages to herself. That if this decree should stand, the appellant the Marchioness would be liable to make satisfaction to the respondent out of her own estate, for so much as the assets of the Marquis, remained unadministered, should fall short of the principal and interest claimed to be due on the deed; although she had applied the assets already administered in satisfaction of the funeral expences and just debts of the Marquis, most of which debts were due on simple contract only. And that many [253] of the unsatisfied creditors might be disappointed, and the appellants the infants would be totally deprived of the provision intended for them by their father's will, and left without any manner of provision for their maintenance or education from him: and therefore it was prayed, that the decree might be reversed, and the respondent's bill dismissed with costs.

On the other side it was only said (T. Lutwyche, W. Hamilton), that the execution of the deed was duly proved, and that the Marquis's subscription thereto was proved to be of his hand-writing; and, therefore, and as the appellant the Marchioness had assets in her hands more than sufficient to satisfy the respondent's just demand, it was hoped, that the decree would be affirmed, and the appeal dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed. (Jour. vol. 23. p. 367.)


Case 32.—Thomas Frederick,—Appellant; Sir John Frederick, and others,—Respondents [5th May 1731].

[A. upon application to the Court of Aldermen, for licence to marry an orphan of the city of London, personally agreed in open court, to take up his freedom of the city, within one year next ensuing. In consequence of this agreement, the licence was granted and the marriage had. But A. though he lived forty years afterwards, never became a freeman; and disposed of his estate by will, without any regard to the custom of London. Held, that the will was void as to two-thirds of the personal estate; and that the same ought to go and be distributed, as if the testator had actually taken up his freedom in his life-time.]

1 Wms. 710. Viner, vol. 15. p. 279. ca. 4. Strange, 455.

In 1674, a treaty was had for a marriage between Thomas Frederick, who was the only son and heir of Sir John Frederick, knt. citizen and alderman of London, and Leonora Marescoe, an orphan of the city of London, and one of the three daughters and coheirs of Charles Marescoe, merchant, deceased, then of the age of

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