1837. VERNON v. VERNON. The bill prayed, that the deed of the 7th of December 1815, so far as respected the conveyance and assignment of the slaves therein specified and comprised, might be declared by the Court to be fraudulent and void, against the Plaintiff, and the inheritance of the estate of Vernons, and that the same might be decreed to be set aside; and that an account might be taken of the slaves residing, attached to, or located upon the estate of Hawksbill, at the date of the sale thereof by Casamajor to Punnett, and of their value at the time of such sale; and that an account might be also taken of all the issue of the slaves so sold by Casamajor to Punnett, as well those deceased as those surviving; and that a like account might be taken of the slaves removed from the estate of Hawksbill by Punnett, or by his order, or on his account, and placed on the estate of Mustique in St. Vincent's, and of their issue; and that a like account might be taken of the slaves now remaining, or which were remaining at the time of the passing of the aforesaid act of parliament, upon, or were claimed by Punnett as belonging to, the estate of Mustique; and that the full and actual value of all such slaves so purchased from Casamajor, with the estate of Hawksbill, and their issue, and the value of the slaves so subsequently removed by Punnett from the estate of Hawksbill, and placed upon the estate of Mustique in St. Vincent's, and their issue, and the like value of the slaves now remaining upon or claimed by Punnett, at the time of the passing of the act of parliament might be ascertained; and that the full amount thereof, when ascertained, might be declared by the Court to belong to and form part of the inheritance and possession of the estate of Vernons, and might be directed to be paid to the Plaintiff, or secured for the benefit of the person or persons entitled to the possession of the estate of Vernons, and the inheritance thereof; thereof; and that all sums of money now awarded, or to be hereafter awarded, to Punnett, in compensation for any of the slaves which, at the time of the passing of the said act, were located upon the estate of Mustique, and were claimed as belonging to Punnett, might be declared to belong to and form part of the estate of Vernons, and might be directed to be paid to the Plaintiff, or secured for the benefit of the person or persons entitled to the possession and inheritance thereof; and that Fraser, Alexander, Neilson and Co., might be restrained by injunction from the further prosecution of the claim made by them before the commissioners of compensation, in respect of any sum or sums to be awarded to Punnett, in lieu and satisfaction of the slaves on the estate of Mustique. The bill prayed process against John Vernon, James Newman, and William Fraser, William Maxwell Alexander, Claud Neilson, and Boyd Alexander. The Defendants Fraser, Alexander, Neilson and Co., demurred to the bill for want of parties, and also for want of equity. The parties pointed out by the demurrer, as being necessary, were Punnett, and the trustees Andrews and Wilson. The Master of the Rolls allowed the demurrer, generally. The Plaintiff now appealed from that decision. Mr. Wigram and Mr. E. F. Moore, in support of the appeal. It must be admitted, that as the bill at present stands,. Andrews and Wilson are necessary parties. By amendment, however, the necessity of making them parties will be removed, because it will be alleged, that the term vested in them has ceased. It is to be observed, VOL. II. M that 1837. VERNON V. VERNON. 1837. VERNON บ. VERNON. that Punnett is charged to be out of the jurisdiction; and there are authorities which shew that it is not necessary to pray process against him when he shall come within the jurisdiction; Haddock v. Thomlinson. (a) The record does not exhibit any defect of which the Defendants can take advantage, by way of general demurrer. The Master of the Rolls said, that every intendment is to be made against the pleader; and that therefore it may be intended, that the removal of the slaves, which is alleged to have taken place in the year 1794, took place before the month of September in that year; and that as John Vernon was then tenant in tail, he may have excluded those slaves from the settlement; and the sole ground of the Master of the Rolls's judg ment was, that on all the allegations taken together, it was to be inferred that it was the intention of the parties to that settlement, that those slaves should be, and that, in point of fact, they were excluded from it. The Master of the Rolls said, that it was to be presumed that John Vernon did know of the removal of the slaves. His knowledge, however, is not to be inferred from the absence of an allegation that he did not know: he was not in possession; he was only a remainder-man; and therefore even if he did know of the removal, why should he complain? he does not appear to have been resident on the island; for the recovery was suffered here; and, indeed, all parties would seem to have resided here. The settlement, in express terms, included all the slaves belonging to the estate; and if it had been intended to except those which had been removed, such intention would have been mentioned. The bill describes the slaves removed as having been those demised by the lease, and as belonging to and located on, and entailed (a) 2 Sim. & Stu. 219. entailed with the estate. It will be observed, also, that the description of the parcels (including the slaves), is exactly the same in the lease of 1798, as it had been in the leases made before 1794; and it is a singular circumstance, that in every succeeding lease the rent is increased. But even if John Vernon did know of the removal, what would that signify, if John Joseph James Vernon did not know of it? The agreement to except those slaves, if there had really been any such agreement, must have been an agreement on the part of both; and if it had been intended to confirm the acts done by Casamajor, he would have been a party to the deed. The Master of the Rolls seems to have thought, that although it is positively averred, that John Joseph James Vernon did not know of the removal, yet that, from the subsequent allegations, it might be inferred that he did know. If such inferences are to be drawn, notwithstanding positive averments, there will be an end of all pleading. There is no presumption that the remainder-man knows how the tenant for life is managing the estate. The reason for confining to John Joseph James Vernon the charge of ignorance of the removal, was that he was the tenant for life in possession, and might otherwise, perhaps, have been presumed to know of it; but that supposition cannot apply to the remainder-man. Nothing that either John Joseph James Vernon or John Vernon did, after the year 1794, can have any bearing upon the present question. The Master of the Rolls, throughout his judgment, admitted the necessity of shewing that both knew of the removal; but he said that he thought much credit was not to be given to the statements in the bill. To enter, however, upon demurrer, 1837. VERNON v. VERNON. 1837. VERNON v. VERNON. into the credibility of the allegations made in a bill, would entirely subvert the old rules of pleading, and introduce a new one; and, indeed, the rule that everything is to be presumed against the pleader, applies to statements, not in a bill, but in a plea. Brownsword v. Edwards. (a) It is true that a long time has elapsed since the removal of the slaves; but John Joseph James Vernon died only recently, and John Vernon is still living; and, in point of law, the length of time which has elapsed makes no difference, because the remainder-man has no right to interfere until the death of the tenant for life, unless there is a fraud on the part of the lessee. The bill charges, that this fraud has been lately discovered by the Plaintiff; that must mean, that the discovery has been, at all events, within twenty years; and in cases of fraud, the time runs from the date of the discovery. Booth v. The Earl of Warrington (b), Randall v. Errington (c), Hovenden v. Lord Annesley (d), Blennerhasset v. Day (e), Lord Arran v. Lord Tyrawley. (g) At law, also, the rule is, that time runs only from the date of the discovery of the fraud; but as the rule of pleading is, that the fraud must be replied specially, there is some confusion in the cases. The recent Limitation Act, 3 & 4 W. 4. c. 27. s. 26., expressly reserves the same right, and is a legislative declaration that there was no intention to alter the law. Sir William Horne, Mr. James Russell, and Mr. Lewis, in support of the demurrer. (a) 2 Ves, sen. 243. The (d) 2 Sch. & Lef. 607. |