Page:The English Reports v1 1900.pdf/431

As to the maintenance, it is a clear position, that it was either satisfied or not satisfied; if satisfied, then it would be impossible to shew that it was satisfied in any other manner than by Lady Rachel's application of the general payments as aforesaid; for the receiver's accounts chewed every shilling that was paid to Lady [59] Rachel, particularly on account of the maintenance, which particular payments amounted only to 5411l. 6s. Here then was clear positive evidence, and to argue from presumption in opposition to such proof, must appear highly extravagant.—On the other hand, if the maintenance still remained unsatisfied; in that case, it necessarily and unavoidably continued a charge upon the estate as well as the arrears of the annuity. The estate was equally subject to both, and Lady Rachel was equally entitled to both under the settlement; and it was clear from what was said above, that no neglect or laches could possibly be imputed to her. It appeared from the order of the 30th of April 1783, that it was by consent of both parties referred to the master, to see what was due for the maintenance of the younger children. In consequence of this reference, the court at length determined the sum of 2865l. 10s. to be due on that account.

But it was objected, that the decree of the 4th of August 1784, ought not to have ordered any thing to be paid to Mr. and Mrs. Jones in respect of the maintenance, but ought to have presumed the same to have been fully satisfied; for Mr. William Morgan came of age on the 28th of March 1746, when he took possession of the estate, chargeable with such maintenance, and enjoyed it till July 1763, when he died; and no claim was set up by Lady Rachel, or any person for any arrears of the maintenance till the month of March 1776, so that the estates had been enjoyed by the several successive owners thereof for upwards of thirty years without any claim, in respect to the maintenance. It therefore ought to be considered as duly paid or satisfied.

The assertion, that no claim was set up by any person for any arrears of the maintenance for upwards of thirty years, stood exactly upon the same ground with the other assertion, that no claim was made on Mr. Thomas Morgan, the elder, for the arrears of the annuity; it was in proof, that Mrs. Jones, in the year 1757, made a regular claim on Mr. William Morgan, her brother, of such part of the maintenance as remained due on her own account; and that she actually delivered in to him a state and account of it, and soon after his death, repeated her claim, in the suits instituted between her and Mr. Thomas Morgan, his father, and brother; and a petition for the maintenance was preferred in the suits in the year 1776; but it was impossible for Mrs. Jones's claim for such maintenance to succeed, because the whole maintenance was ordered by the court to be paid to Lady Rachel, and she was no party to the suits in which this maintenance was claimed, and in which this petition was presented; but though the above petition was of course dismissed, it was expressly dismissed without prejudice to Lady Rachel. But these facts proved, that it was all along known in the family, that the arrears of maintenance remained unsatisfied. Lady Rachel had given in her second examination, in answer to the second, third, and fourth interrogatories, full and satisfactory reasons why she did not make any claim either for the maintenance of her children or her jointure; and said, that as the general payments continued to be made during [60] her eldest son's lifetime, without being restrained either to the annuity or the maintenance; and as there was an open running account between her and her son, or his estate, both accounts were therefore kept constantly alive during his life; nor could there be any just reason for saying, that the arrears of the annuity should be paid in preference to the arrear of the maintenance.

It was further objected, that Lady Rachel had set forth in her first examination, that there was a large arrear due to her for the maintenance and education of her eldest son Mr. William Morgan; but no part of such arrear could be a charge on the estate in the hands of Mr. Charles Morgan, and therefore he was not obliged to pay it.

Mr. and Mrs. Jones admitted the force of this objection; but then they insisted, that part of Mr. William Morgan's maintenance was already paid, and the arrears remaining due on the account of the younger children must increase exactly in proportion to that part so paid for the eldest son's maintenance. The whole