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without regard to the assets, he might not think it necessary to keep a very accurate account of items, which could serve only to shew how much his payments exceeded his receipts; and to what amount he might, if he pleased, have considered himself as a creditor upon his own children. This was the sort of account he had to keep, according to the ideas then entertained by the family, of Duke Ralph's affairs. If however, from the subsequent receipt of a considerable sum of money due from the fa-[288]-mily of Monk, or for any other reason, the respondents conceived that the balance of this account would be found in their favour, Duke John, having intermeddled with the estates which he had thus refused to entitle himself to, was undoubtedly accountable, nor did the appellants or his representatives decline going into the account, if it should be thought the respondents were entitled to it; although the difficulty and disadvantage attending the taking such account, after this length of time, would lie upon the appellants; and it was the respondents fault such account was not called for sooner, which it certainly would have been, if they had not known that it had been waived, or was not worth following.

III. But it is further objected on the part of the respondents, that the bill in Chancery filed in the name of Duke John, in 1716, against an agent of Duke Ralph's estates, for the money received by him, both before and after the Duke's death, in which Duke John was made to claim those estates as his own; an act of parliament of the same year, among the recitals of which, the lands which passed by Duke Ralph's will are said to be devised to the same uses, to which those comprised in Duke John's marriage settlement were limited; and another act of 1723, confirming the articles made on the marriage of the respondent Lady Beaulieu with the Duke of Manchester, in which, among the lands intended to be sold to raise the daughter's portions, some were mentioned as the lands of Duke John in the county of Middlesex, and under that description the lands of Duke Ralph in that county were afterwards sold; were all so many further acts importing, that Duke John considered his father's estate as his own, and which could only be by his having accepted the conditional devise of them in his father's will.

In answer to this it was submitted, that these acts, though in some sense the acts of Duke John, were not in their nature so properly his own, as to afford any fair inference of his election or intention; for with respect to the bill in Chancery, as the defendant was undoubtedly accountable for what he had received after Duke Ralph's death, as well as in his life-time, the drawer of that bill might not think it material to inform himself how, or by what title, the plaintiff the Duke claimed it. That he was not in fact informed, appeared from his describing the Duke as entitled by descent, or otherwise; whereas he was in truth, not having accepted, entitled only as guardian for his children, to the rents which became due after his father's death; and if he had accepted, he would have been entitled as devisee for life, under the will; so that he had not, in either case, any title or claim of title by descent. As to the first act of parliament, the recital was right in expressing the estates which passed by Duke Ralph's will, as having been devised or intended to be devised to the same uses as the settled estates were limited; only is was defective in not adding, that Duke John had renounced or refused the estate for [289] life, which he might have taken under that devise. And as to the last act of parliament, the mistake seemed rather in the execution of the act, than in the penning it, by settling Duke Ralph's lands under a description which did not comprise them; this mistake however was of little consequence, the produce of those lands forming a very inconsiderable part of a very large sum of money (£40,000) which the Duke then concurred in raising for his daughters portion, by giving up his life estate in such of the lands comprised in his marriage settlement, as were sold for that purpose. The act of parliament in 1723, seemed to have been intended as a new family settlement, in which the parties appeared to be looking forwards, and waiving all retrospect; the daughters indeed were infants, but very good care was taken of their interests, the respondent Lady Beaulieu's particularly, under the care of her intended husband and his friends, who were treating of her interests as their It was remarkable too, that at this very time, among the many mortgages made by Duke John of his Warwickshire estate, was one to the trustees of that marriage for £23,000, part of bis daughter's portion; a circumstance which surely afforded stronger evidence of his being then understood to have elected to refuse, than any thing in the act could do of an election to accept; for if he had been understood by the Duke of