Page:The English Reports v1 1900.pdf/713

The respondent Mark Sansam and his wife, and the respondent William Sansam, immediately upon being served with a subpoena to appear to and answer the above bill, applied to Mr. John Lely of Grantham in the county of Lincoln, a solicitor of the court, and delivered to him all the necessary deeds and papers to enable him to prepare their answers, and act for them in the cause; and he undertook their defence, and acted as their solicitor from that time, until the end of December 1767; and on the pronouncing of the decree, he having informed them of the nature of it, and of the issue to be tried, they urged him to proceed in the trial, which he repeatedly promised to do; but he afterwards, on various pretences, declined proceeding to trial at the time appointed by the decree; but at the same time assured them, that no injury should happen to them by the delay, and that the trial should be had at the summer assizes following.

The respondent Mark Sansam and his wife, and the respondent William Sansam, for some time rested satisfied with Mr. Lely's assurances; but as he did not proceed to try the issue, they afterwards made application to him to proceed; and he then positively refused to try the issue. Upon this, they requested him to deliver up their papers, in order that they might employ some other solicitor to act for them therein. This also he refused to do; and about Hilary term 1767, he arrested the respondents Mark Sansam and William Sansam for the remainder of his bill of costs, which they thereupon paid him; yet he still persisted in his refusal to deliver them their papers, and by those means they were disabled from proceeding to try the issue.

The plaintiffs endeavouring to avail themselves of Mr. Lely's neglect, on the 18th of March 1766, made an application to the Court, and obtained an order, that the issue should be taken as if tried and found against the respondent Mark Sansam and Ann his wife only, and procured the cause to be set down for directions upon the equity reserved.

On the 5th of July 1768, the cause was brought on before the Master of the Rolls, upon the equity reserved; and (no counsel appearing for either of the respondents) the Court, on the hearing, declared the will of the testator Thomas Greaves to be well proved, and that the same ought to be established and carried into execution; and decreed the same accordingly. And the Court declared, that the respondent Mark Sansam was to be considered as a trustee in the renewed leases, for the appellant Ann and her said mother and sister; and it was referred to the Master, to take an account of the rents and profits of the testator's estates, accrued since the death of his grandson Thomas Sansam, and to distinguish how [472] much of such rents and profits accrued in the lifetime of Sarah, the late wife of the plaintiff Richard Linthwaite, and to take an account of the fines and fees paid by the respondent Mark Sansam on the renewal of such leases, and compute interest thereon, and such interest was to be deducted out of the rents and profits accrued since the time of such renewals respectively; and such fines and fees, were to be considered as a charge on the premises comprised in the renewed leases; and it was ordered, that such of the rents and profits as accrued in the lifetime of the appellant Ann's mother, after a deduction of so much of such interest, should be paid to the plaintiff Richard, and that the rest of such rents, after a deduction of so much of such interest as accrued after her death, should be paid into the Bank, in the name of the Accountant General, in trust for the appellant Ann and her sister; and the respondent Mark Sansam was to be at liberty to apply to the Court, for having what should be found due to him for such fines and fees; and the Master was to appoint a receiver of the rents and profits of the estates, and the balance was to be from time to time paid by him into the Bank, to the credit of the cause; and the appellant Ann and her sister, were to be at liberty to apply to the Court concerning the same; and the respondent Mark Sansam and his wife, and the respondent William Sansam, were to pay the costs of the suit, so far as related to the question, whether Thomas Sansam lived to attain his age of twenty-one years; and the rest of the costs, except as to the respondent Mark Sansam's right to be repaid what was due for principal and interest for the fines and fees of renewals, were to be paid to the plaintiffs, out of what should be coming on the account of the rents and profits before directed; and the costs which were directed to be paid by the respondent Mark Sansam and his wife, and the respondent William Sansam, were to be deducted out of what should be coming due to the respondent Mark Sansam on the account of fines and fees, and the interest thereof;