Page:The English Reports v1 1900.pdf/425

aminations; but it was most probable, that he did not expect this search would be favourable to him, for after Lady Rachel's death he never offered to compel Mr. or Mrs. Jones to search for and pro-[50]-duce the deeds or writings in question, but Mr. Jones voluntarily produced them in court upon his oath.

Another objection was, that Lady Rachel admitted in her examination, that she lived very retired from the year 1747-8, to the end of the year 1755; and that neither she nor any person for her kept any account of the payments made to or for her benefit by Mr. William Morgan during that time. That her Ladyship in her examination set forth, that several sums of money were paid to or for her use during that time, amounting in the whole to no more than 4666l. 18s. 5d. yet she admitted, that more than that sum must have been paid for her use, though she said, she could not tell exactly how much; so that it was impossible for any person to say what was the amount of the arrears now due, and therefore none should be allowed.

But it was certain, that all the evidence of the payment of nineteen parts in twenty of this annuity, from 1731, to June 1780, was, for a long time, in the possession or power of Mr. Charles Morgan, or Mr. Thomas Morgan his brother. That all the books of accounts, papers, and vouchers of Mr. Bryan, who made such large payments on account of this annuity, were, for many years, in their custody, and had been long since produced upon oath in this cause; besides, in all cases between debtor and creditor, it is the debtor, not the creditor, who is obliged at his peril to keep the accounts, and therefore, if the want of accounts in the present case must occasion a loss to one of the parties, that loss both at law and in equity, must fall on the person whose duty it was to keep the accounts. In this case, Mr. William Morgan was the debtor, and as he undertook to manage for the creditor (which is very unusual) it was the more incumbent on him to place all his payments to that creditor, on such clear ground as to be beyond a possibility of doubt; if he neglected to do this during five years of his life, ho could take no advantage of that neglect were he now alive; much less should they, who stood in his place, and enjoyed his estate. Besides, her Ladyship's accounts were very clear; in the schedule to her examination, she specified every sum which had been paid her from her husband's death in 1731, to the 13th of February 1747-8; from that time a period of eight years remained in some respects unaccounted for when her Ladyship put in her examinations, but the book found at Mr. Mann's contained an account of the money paid her Ladyship in the three first years of this period of eight years. There remained then only a period of about five years to account for, and the vouchers found since her Ladyship's death, had cleared up the matter in respect to the payments during these five years; as far as presumption goes, there is no reason to suppose, that the payments made during this period were greater than the payments made at any preceding period. On the 28th of March 1746, when Mr. William Morgan came of age, there was an arrear of 7000l. due for her jointure, and an arrear of 9712l. 16s. 4d. for the maintenance of her children; there was at that time no demand but Lady Rachel's upon the estate. Now the arrears stated in the [51] master's report to have become due for the annuity, from the 28th of March 1746, to July 1763, a period of more than seventeen years, amounted only to 9824l. 11s. 4½d. during which time the estate had to support Mr. William Morgan, who was engaged in great expenses of every kind. It was unnecessary to mention again the distress of Mr. William Morgan for want of money, his suffering his tutor's small annuity of 200l. to run 600l. in arrear, and the many other circumstances which shewed the general irregularity of his payments. But if there had been any laches in this case, to whom were they imputable? Who appointed the agents to act for her Ladyship, when she was in a state of mind not to be able to act for herself? Under whose guidance, influence, and controul did those agents act? Who upon the decease of those agents had their papers? Who concealed the irregularity of the payments from her Ladyship? Who refused to pay the arrears? Who persuaded her Ladyship, that she had not a right to claim from the estate the arrears which became due during Mr. William Morgan's life? Why, the respective owners of the estate which was subject to the arrears. It must be repeated, that the loss, if any, occasioned by the want of regular accounts during those five years, falls both at law and in equity, not upon Lady Rachel the creditor, but upon Mr. Charles Morgan the debtor.