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or would be claimed. It was not to be conceived, that if Lady Rachel had really ground for such claim, she would have suffered the appellant's father and brother and the appellant to have continued in the possession of the estates charged with the rent-charge, or that she would have received the rent-charge from 1763, without ever [41] pretending, till 1775, that there was any arrear due to her; and it was the more improbable she would have done so, as it was alleged that her circumstances were but scanty, and as she and her trustees, who were relations, had a legal remedy for the arrears, if there had really been any due. That it was not in the power of the appellant to give any evidence of the actual payments of the rent-charge in the life-time of William Morgan, after he came of age in 1746, as all the agents and persons concerned for him and Lady Rachel, and who received and paid money for then, were dead long before the claim of the arrear was made; and Lady Rachel, or the respondents, who took out administration to William Morgan upon his death, possessed all his deeds and papers, which Lady Rachel refused to discover, though required so to do; and the master certified her neglect, for which the only proceeding against her must have been by commitment for contempt of the court, which the appellant declined to pursue on account of her age, being 84, and for other obvious reasons, and being in hopes she might be prevailed upon to submit without proceeding to such extremity. That Lady Rachel, whose business it was to keep accounts and evidence to shew that there was such arrear, said in her examination, that she nor any person kept any account of the money received in respect of the rent charge, and such evidence as was produced she admitted to be very defective; and in her examination offered to give credit for 1000l. a-year for several years, which was 600l. a-year more that she had debited herself. In the assignment from Lady Rachel to Mrs. Jones in the year 1775, the arrears claimed were said to be 22,703l. 9s. 11d, and in Lady Rachel's examination, to be 34,563l. 1s. 9½d. and under the circumstances of this case, the court ought to have presumed payment of the rent-charge, and not to have allowed the claim, as it would not be too much to presume desertion and relinquishment of the demand, if any such she had.

But if the arrear of the rent-charge was not to be presumed to have been paid or relinquished, it was submitted, that the rent which was due from the tenants of the estates, charged with the rent-charge and comprized in the term of 99 years for securing the same, at the time of the death of William Morgan, and received by the respondent Elizabeth Jones as his administratrix, and which appeared by the master's report to be 5000l. ought to be applied, as far as the same would extend, to satisfy the arrears; and that Lady Rachel Morgan or her trustees ought to have called upon the tenants to have paid the arrears of rent in their hands to her, and if they had refused so to do, to have distrained upon them for the same, which might have been done by virtue of the clause of distress in the settlement. That the same reasons held against charging the appellant or his estate with 2681l. the supposed arrears of maintenance for the younger children, and for applying in satisfaction of those arrears, if any, the rents which were unreceived at the death of William Morgan, which appeared by the master's report to be 4000l. a sum much larger than the arrears of maintenance; with this further reason, that the [42] maintenance of the younger children was by the terms of the settlement to be paid out of the yearly rents and profits, and was not charged on the estate itself. That interest ought not to have been directed to be computed upon the arrears of the rent-charge. No demand whatever of such arrears was made until 1775, and then much more was required by many thousand pounds than had been reported due. The appellant did not, nor could know, that any thing was due. It was Lady Rachel's fault that there was such an arrear, and it was owing to her neglect that the appellant was charged with the arrears; they ought to have been paid by William Morgan, in whose life-time they became due, and would have been, if Lady Rachel had demanded them; besides, the arrears were not ascertained till the master's report in 1782. That the decree ought not to have directed the cost of the respondents Jones and his wife in the cause in Chancery to be paid by the appellant, for that the suit was necessary; the demand of lady Rachel was thereby reduced from 22,703l. 9s. 11d. as it stood in the deed of assignment, and from 34,563l. 1s. 9½d. as it stood in her examination taken after the decree was made; which could only be done by an investigation in Chancery, the appellant having no proof in his possession, nor means of discharging himself at law against the exorbitant demand of Lady Rachel.