Page:The English Reports v1 1900.pdf/714

and any of the parties were to be at liberty to apply to the Court, as there should be occasion.

The plaintiffs proceeded upon this decree before the Master, for the purpose of getting a receiver appointed of the estates in question; and, on the 11th of August 1768, obtained his report of the appointment of a receiver.

All this time the respondent Mark Sansam and his wife, and the respondent William Sansam, remained totally ignorant of what passed; and from the time of pronouncing the decree of the 18th of July 1763, had not the least intimation, either from Lely or any other person, that any proceedings were had in the cause; until the 15th of September 1768, when the respondent Mark Sansam was served with a writ of execution of the order for taking the issue pro confesso against him, the subsequent decree, and the Master's report. Immediately on this, fresh application was made to Mr. Lely for the papers in his possession, and it was not till some time in October following, that he delivered them up.

But immediately afterwards, the respondent Mark Sansam and his wife, and the respondent William Sansam, presented their peti-[473]-tion of appeal to the Lord Chancellor Camden, stating the several proceedings in the cause, and the conduct of Mr. Lely as above-mentioned, and praying, that the cause might be reheard, as to the directions given by the decree of the 5th of July 1768, and that thereupon that decree might be reversed, and that the cause might be ordered to stand over to be heard, as to the matters reserved by the order of the 18th of July 1763; and that previous to the hearing thereof, such issue might be tried at the then next Lent assizes for the county of Leicester; and the petitioners Mark Sansam and Ann his wife also prayed, that the order of the 18th of March 1766 might be discharged.

The appeal having been set down for hearing for the 15th of November 1768, the respondent Mark Sansam and his wife gave notice of motion for that day, to discharge the order of the 18th of March 1766, and that the issue might be tried at the then next assizes for the county of Leicester.

On the 16th of December 1768, the appeal and the matter of the motion came on to be heard, when his Lordship, upon the defendants paying the plaintiffs their costs incurred since the order directing the issue, did, by consent, (the appellant Ann having a considerable time before attained her age of twenty-one,) order, that the decree should be reversed; and that the parties should proceed to a trial of the said issue, at the then next assizes for the county of Leicester; and in case the issue should not then be tried, through the default of the defendants, it was ordered, that the same should be taken pro confesso as against them; and his Lordship reserved the consideration of all further directions until after the trial should be had, or the issue taken pro confesso; and any of the parties were to be at liberty to apply to the Court, as there should be occasion.

In pursuance of this order, the respondents Mark Sansam and William Sansam paid the plaintiffs £70 and upwards, for the costs thereby directed to be paid; and the parties proceeded to a trial of the issue at the Lent assizes 1769, for the county of Leicester; and after a full trial, and an examination of many witnesses on the part of the plaintiffs, and of thirteen witnesses on the part of the defendants, the jury (most of whom were special) found, that Thomas Sansam died on the 15th of August 1746.

On the 31st of March 1769, the respondent Mark Sansam and his wife, and the respondent William Sansam, obtained an order for setting down the cause to be heard on the equity reserved, and had it set down accordingly; but on the 8th of June following, and not before, the plaintiffs thought fit to give notice of motion for a new trial of the issue. The motion came on in the beginning of July following, before the Lord Chancellor, when it was insisted on as a foundation for the motion, that the defendants in the issue had several witnesses, who were not produced on the trial; and that their agent in London was newly appointed before the trial, and consequently was ignorant of the merits of the cause: but his Lordship, on hearing the report of the Judge before whom the issue was tried, refused to direct a new trial.

[474] On the 5th of July 1769, the cause came on to be heard upon the equity reserved, when his Lordship ordered that the bill should stand dismissed without costs.