1837. VERNON v. VERNON. Vernon, the tenant in tail; and that is one ground upon which I think the general demurrer must be allowed. I do not at all dispute that the identity of the slaves is made out upon the statements in the bill; and I think that sufficient is stated to shew that the slaves included in the lease of 1785 became the subjects of the settlement of 1794, and also of the leases of 1798 and 1808; and that the same slaves, or, at least, some of them, became the subjects of the various subsequent dealings mentioned in the bill. The bill states the settlement of 1794; according to the terms of which, as stated in the bill, the Plaintiff would be tenant in tail, and the Defendant John Vernon would be tenant for life. For the purposes of demurrer, you must, undoubtedly, take the representation of the contents of a deed which is made by the bill to be true. By this settlement then, as the bill states it, the Plaintiff is tenant in tail, as eldest son of the Defendant John Vernon. 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 settlement, and not as a mere legal deduction from the settlement as as set out in the bill. But it does not rest there; that might be a mistake in the copying or otherwise: 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 son 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. 1837. VERNON v. VERNON. 1837. VERNON บ. VERNON. 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. 1837. MORTIMER v. FRASER. Jan. 30. Feb. 1, 2. When a Dedemurrer on record, and fendant puts a also demurs on record is 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; ore tenus, if thirdly, that all the relief sought by the bill might be the demurrer had in another suit still depending; and, fourthly, that overruled, the bill had been filed after a petition for leave to file it had been dismissed. The Defendant also demurred, ore tenus, at the bar, for want of parties. The Vice Chancellor overruled the demurrer upon record, with costs; but allowed the demurrer ore tenus, without costs, and gave the Plaintiff leave to amend generally. The Defendant appealed from his Honor's decision, upon the ground that the demurrer on record ought to have been allowed with costs, and also that liberty to amend ought not to have been given, or if given, should have been given only on the terms of the Plaintiff paying the costs of the demurrer. The LORD CHANCELLOR, after hearing Mr. Jacob and Mr. Daniell in support of the appeal, and Mr. Knight and Mr. Koe in support of the Vice Chancellor's order, was of opinion that his Honor was right in overruling the demurrer upon record, and that the Plaintiff ought to have leave to amend. Mr. Jacob and Mr. Daniell then argued that it was the constant practice, that if a demurrer on record was overruled, but the demurrer ore tenus was allowed, each party paid his own costs of the demurrer on record; and they further insisted that it had been decided in the case of Newton v. The Earl of Egmont, but the de murrer ore tenus is allowed, the Defendant must pay the costs of the demurrer on order to the make such 1837. MORTIMER บ. FRASER. Egmont (a), and that it was the practice of the Court, that whenever, after a demurrer ore tenus for want of parties had been allowed, a plaintiff was desirous of amending his bill more extensively than by merely adding parties, the plaintiff must pay the costs of the demurrer. They admitted, however, that when that case was cited to the Vice Chancellor himself, his Honor said he did not intend to lay down any general rule upon the subject. The LORD CHANCELLOR. I have made some inquiries as to the course of the Court, since the new orders, in cases in which the demurrer on the record is overruled, but a demurrer ore tenus allowed; and the Registrars do not seem to have formed any conclusive opinion upon the subject. According to my own recollection, the practice before the new orders was, that in such a case the Court gave no costs on either side; but I think it is extremely difficult to get over the language of the thirty-second order of 1828, which provides, "that upon the overruling of any plea or demurrer, the defendant or defendants shall pay to the plaintiff or plaintiffs the taxed costs occasioned thereby, unless the Court shall make other order to the contrary." It is not said now that the Court below made any other order to the contrary; and if so, I do not see how the court of appeal is to make any order. The thirty-second general order is imperative. The Defendant's application to be relieved from the payment of the costs of the demurrer on record, should have been made to the Court below, at the time at which the demurrer ore tenus was allowed. Indeed, I cannot say that I have any disposition to depart from what appears (a) 4 Sim. 574. to |