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![handle is hein.slavery/ssactsengr0757 and id is 1 raw text is: MORTIMER V. FRASER
Then comes this allegation, viz., that John Joseph James Vernon left the
Defendant John Vernon, his eldest son and heir in tail in remainder under the
settlement. Now, according to the statement of the settlement which is made in the
bill, he would not be heir in tail in remainder, but second tenant for life.
Here then is a bill which states a settlement, under which a person would be
tenant for life in remainder, expectant on a previous life estate; and then afterwards
there comes a statement that under the settlement, not as set forth in the bill, that
person became heir in tail in remainder; stating that to be the result of the settle-
ment, and not as a mere legal deduction from the settlement [171] as set out in the
bill. But it does not rest there; that might be a mistake in the copying or other-
wise; the Plaintiff goes on, and states his own title, not as first tenant in tail by way
of purchase, which would be his title under the terms of the settlement as before set
out in the bill, but he states that he is himself the eldest sen and heir apparent in
tail.
How can the Court assume, after these statements, that the Defendant John
Vernon is tenant for life, and that the Plaintiff is the first remainder-man in tail?
These statements assume that there is an estate of inheritance in John Vernon, and
that the Plaintiff is his heir in tail. It is twice stated as a fact that John Vernon is
tenant in tail, and that the Plaintiff is issue in tail. If that be so, there is an end of
the case, for John Vernon is at this moment tenant in tail, and the Plaintiff is only
issue in tail, and has no right to file this bill.
Then, again, it would be intelligible enough that John Vernon should give the
indemnity to which I have before referred if he was tenant in tail.
Thus there is a sufficient doubt left by the Plaintiff to prevent his being entitled
to attribute these two statements to mere accident, and to take the benefit of his
former statement of the terms of the settlement.
If I am bound, in consequence of the loose statements in the bill, to assume the
fact to be either one way or the other, then the rule applies which entitles the
Defendant to put that construction upon the statements in the bill which is most
against the interest of the person making them.
[172] If I were to overrule this demurrer, I must assume three things: first, I
must assume that the slaves were removed subsequently to the settlement of 1794,
which is not alleged to be the case ; secondly, I must assume that the slaves were
removed without the privity of John Vernon, which is not alleged to have been the
case; and, thirdly, I must assume that the terms of the settlement are correctly set
out in the bill, and that the two passages which I have read from the bill, and which
are inconsistent with the statement previously made of the terms of the settlement,
have been inserted by mistake; but these assumptions I cannot make. The appeal
must, therefore, be dismissed, with costs.
Mr. Wigram, at the conclusion of the Lord Chancellor's judgment, applied for
leave to amend, and urged that the ground taken by the Master of the Rolls in his
judgment had not been supported by the judgment upon the appeal. Mr. Lewis
opposed the application ; but the Lord Chancellor said that he had reason to believe
that the allegations upon the ground of which he had been obliged to allow the
demurrer had crept into the bill by accident, and that in such a case the Court was
in the habit of giving leave to amend. Leave to amend was therefore granted.
[173] MORTIMER V. FRASER. Jan. 30, Feb. 1, 2, 1837.
When a Defendant puts a demurrer on record, and also demurs ore tenus, if the
demurrer on record is overruled, but the demurrer ore tenus is allowed, the
Defendant must pay the costs of the demurrer on record, unless the Court at the
time makes other order to the contrary ; and, senble, the Court will not be disposed
to make such other order.
In this case one of the Defendants filed a demurrer to the bill ; and for cause of
demurrer shewed: first, want of equity ; secondly, that the matters in question had
already been decided in a suit still depending; thirdly, that all the relief sought by
the bill might be had in another suit still depending; and, fourthly, that the bill had
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2 MY. & CR. 17L.](ViewImageLocal?handle=hein.slavery/ssactsengr0757&div=1&collection=&method=preview&ext=.png&size=3)