Page:The English Reports v1 1900.pdf/715

From this order, and also from the decree of the 16th of December 1768, though made by consent, the present appeal was brought; and on behalf of the appellants it was insisted, (A. Wedderburn, C. Ambler) that notwithstanding the verdict had found, that Thomas Sansam the devisee died on the 15th of August 1746, the Court ought, upon the cause coming on for further directions, to have declared, that he did not accomplish his full age of twenty-one, and to have given the consequential directions; it being a fact admitted by the respondents, and not controverted through the whole suit, that Thomas Sansam was born on the 16th of August 1725, and therefore could not, as it was apprehended, accomplish his full age of twenty-one years, unless he lived to the 16th of August 1746. That there being contradictory evidence as to the day on which Thomas Sansam died, whether upon the 14th or 15th of August 1746, the question whether he attained the age of twenty-one was not decided, nor even debated upon the first hearing of the cause, on the 18th of July 1763, but the issue was directed upon the opening, and the question left undecided till after the trial. That in case Thomas Sansam would be considered as having attained his age of twenty-one, if he had lived to the 15th of August 1746, yet the verdict which was given on an issue directed to satisfy the conscience of the Court as to the fact, and which had found that he died on the 15th of August, was given upon the evidence of witnesses, who swore to a fact twenty-three years after it happened, without any circumstances to assist their memory; and upon reading the copy of an inscription on a grave-stone put up in the church yard, where the said Thomas Sansam was interred, and which was introduced on the trial for the first time; not being mentioned in the respondents answer to the appellants bill, nor examined to by them in the proofs before the Court of Chancery, and which there was reason to believe was fabricated for the purpose, and ought not to have been admitted in evidence. All which evidence was contradicted on the trial by many credible witnesses, examined on the part of the appellant Ann, who proved the death to be on the 14th of August 1746, and whose testimony did not depend upon the mere memory of the fact, but was assisted by other circumstances, which gave sanction and credit to the truth of their recollection: and therefore a new trial ought to have been granted, or a more proper issue directed, viz. "Whether Thomas Sansam accomplished his full age of twenty-one years?"

On the other side it was contended, (E. Thurlow, J. Dunning) that the order of reversal of the 16th of December 1768, was made by consent, and it was so expressed in the order itself; the appellant Ann had attained twenty-one, more than a year and a half before the pronouncing of that order, consequently the consent was binding on her; and it is a known and established rule, that an appeal does not lie from an order made by the consent of parties. That the order pronounced. [475] on the 18th of March 1766, besides the hardship which, if regular, it would have put upon the respondents, was in itself palpably erroneous, in directing the issue to be taken pro confesso against the respondent Mark Sansam only, when it ought to have directed, if any thing, that the issue should be taken as confessed against the respondent Mark Sansam and his wife, and the respondent William Sansam; and that order was not a foundation for the subsequent decree made by the Master of the Rolls, on the 15th of July 1768; and therefore that error was a sufficient reason, in point of regularity, for making the order of reversal of the 16th of December 1768. That the hardship which would have been put on the respondents, in preventing them from trying an issue, which, from the evidence given in the cause, appeared so much in their favour, and for not trying which they were in no wise blameable, and directing that issue to be taken against them as confessed, and consequently, determining the right against them, was a very strong and good ground of equity for the order of reversal; and its justice was fully evinced by the verdict of the jury, which was entirely to the satisfaction of the Judge before whom the issue was tried, as appeared by his report; and upon the application for a new trial, the Lord Chancellor thought there was no pretence for granting one: but if the plaintiffs were dissatisfied with his Lordship's determination, they ought to have appealed from the order refusing a new trial, instead of proceeding to the final hearing of the cause. That it was a fact clearly proved by several of the respondents witnesses, and even admitted by the appellants petition of appeal, that Thomas Sansam was born on the 16th of August 1725. It