#### BENJAMIN C. WILLIAMS *against*CHARLES CHAMBERS AND OTHERS.

Where a bill is defective in substance, amendments will not be allowed on the hearing in this Court, except by consent of parties; nor will the Court, in such case, except under peculiar circumstances, remand the cause for the purpose of amendment in the Court below.

Cause removed from the Court of Equity of Moore county-at Fall Term, 1851. The pleadings and facts necessary to an under*76standing of the case, as it was considered on the hearing, are sufficiently stated in the opinions delivered by the Court.

The case was argued at a former Term by *Strange, Reid*and *Mendenhall,*for the plaintiff, and by *Winston, W. H. Haywood*and *Horton,*for the *defendant;*and again at this Term, by

*Strange,*for the plaintiff, and

*Winston,*for the defendant.

Nash, C. J.

The bill was filed in the Court of Equity for Moore county, where the pleadings were made up and the proofs taken; and the cause being regularly set for hearing, has been transferred to this Court. Upon the opening of the case, and hearing the. bill and the answers read, the attention of the counsel was called to an objection which extended *in limine*to his bill. It sets forth no title in the plaintiff, and we cannot, in its present form, grant him any relief. A motion is made on the part of the defendant to dismiss the bill, which is met by a counter motion on the part of the plaintiff to amend. Upon this motion two questions are presented: the first, has this Court the power to amend, without the consent of parties'? and the second, if it has not, will it send the cause back to the Court below to enable the party, if he can get permission there to amend. The rules of practice in a Court of Equity are, to a certain extent, the law of the Court and expressive of its power. Upon this subject, the Clerk of the Court and the gentlemen of the bar in attendance have been consulted ; and finding a difference of opinion to exist, we have called in aid the experience of the late Chief Justice Ruffin, who was here. For many years the presiding officer of the Court, no one is better able to point out its practice. He stated to us that in his experience, this Court never allowed amendments in bills in Equity in matters of substance, but by the consent of parties, for the reason that it never was considered to be within its power. We are satisfied it is not within our power to make the amendment asked for, as it is one of substance, and the defendant does not agree to it. This is not a Court of original jurisdiction, except in a few cases provided for by the Legislature. Bills are filed in the Court below, and there the causes are prepared for hearing. When set *77for hearing, they may be brought here either by an appeal from the Court below, or may be removed by the parties. No cause in Equity can be removed here, until it is so set for hearing. If such an amendment could be made here, without consent of parties, it would be necessary, according to the course of tire Court, to get rid of the decree setting the cause for hearing; and the moment that was done, the cause would be out of Court here. We are fortified in the conclusion to which we have come, by the Acts of 1822 and 1825, now constituting the 14th sec. of the 33 ch., Revised Statutes. They provide that the Supreme Court shall have power to amend proceedings by making parties, and taking testimony when required. The Act constituting the Supreme Court was passed in 1818, and if it has a power inherent in it to make amendments, as has been urged, then the Acts referred to were entirely unnecessary. It is evident the Legislature did not so consider the power given ; and from the manner in which cases are directed to be brought from the Courts of Equity to this Court for hearing, by the Act of 1818, no amendment affecting the order for the hearing can be allowed here. If it could, a new case might in effect be made in the bill, so as virtually to assume original Equity jurisdiction for the Court. Such a course on the part of the Court would be justly regarded by the Legislature and the profession with extreme jealousy, as it would be, in effect, allowing bills to be filed here, and here prepared for hearing.

Can this Court remand a cause for the purpose of amending? This is a discretionary power, and can and may be used by the Court as justice and equity may require. From the same high authority we leam that after a cause is brought on to a hearing, the remanding of Equity cases for the purpose of amendment, has been, under the practice of the Court, confined to cases of surprise or of agreement between the parties. Here there is *neither;*and we should, without hesitation, dismiss the bill but for the answers. They have met the bill upon the title which the plaintiff has relied on in his *testimony;*to that title the testimony has been directed on both sides, and the parties have gone to a hearing on it. Another reason influences us: we are desirous, as far as we can, of avoiding delay. The case of *Parker*and *Coggin*v. Leathers, decided at December Term, 1846, bears us out in the decree we make.

*78PearsoN, J.

The bill is defective in substance. It introduces the plaintiff as the *only child*of Benjamin W. Williams, dec’d., who died seised and possessed of a very large real and personal estate, leaving him surviving the plaintiff, his only child, and his widow, who is one of the defendants. It suggests that it is alleged the father of the plaintiff *left a mil, but if such is the fact and it is deemed material, the plaintiff holds the defendants to strict proof thereof.*It then avers that one Archibald McBride, who was the father of the widow, under pretence that there was a will in which he was named executor, and from which will the widow dissented, took possession of the whole estate, real and personal, and that by an exorbitant allowance to the widow for a year’s provision, by an excessive dower, and by tire fact that she was allowed (owing to an impression that in consequence of a large debt, the widow and child *u*would be left destitute, and that bids made for her would enure to the benefit of the child as well as herself,) to buy many valuable negroes, furniture, &c., &c., at prices merely nominal, and by reason of this sacrifice of the personal estate, the defendant Chalmers, who had intermarried with the widow of the plaintiff’s father, and who had in the *County of Orange*been appointed guardian for the plaintiff, (leaving the validity of the appointment an open question,) was enabled to obtain a decree for the sale of the real estate, at which sale the defendant, Chalmers, purchased several tracts of land for inadequate *prices;*and by these actings and doings, the plaintiff, who is the *only child of Benjamin W. Williams,*finds that he is poor while his stepmother is rich.” The object of the bill and the whole scope of it is, that he, in *the*character of the only child of his father, may have an account of his father’s estate, so as to be informed what has become of it, and to have all the alleged abuses investigated and put right.

During the progress of the hearing, and in fact after the hearing was almost ended, it was suggested to the counsel for the plaintff, Mr. Strange, that his bill was fatally defective in substance ; for if there was a will, about which the plaintiff made a question, and held the defendants to strict proof, then the plaintiff was obliged to make title under the will as legatee or devisee; *79and *if there was no*will, *the plaintiff hacl set out no title ;*that the bill was evidently framed on the idea of charging McBride as *Executor de son*tort, but that such a fiction.; although adopted in Courts of law to enable *creditors*to get their rights, had never obtained in Courts of Equity in behalf of the next of kin ; and that in fact the next of kin had no title except through an administrator, by force of the Statute of Distributions.

Mr. Strange, seeing that upon this view of the case, his bill would necessarily be dismissed, asked leave to *amend;*and if that should be against the course of the Court, then he asked that the cause might be remanded, to the end that the amendment might be made in the Court below — stating frankly, that in drafting the bill, and while piling up the circumstances of fraud, he on purpose left it as an open question, whether the father of his client died testate or intestate *;*and he suggested in support of his motion to amend, that the defendants averred in their answers that the plaintiff’s father had left a will, and that all of the proofs were taken on that supposition.

I confess, that at first I was strongly inclined to allow the amendment to be made in this Court, although it would have entirely altered the frame of the bill, and introduced the plaintiff in a new character ; for I could not see that it was worth while to send the case back to the Court below, when it would, as a matter of course, be sent back again to us. But upon consulting Mr. Freeman, the very able and experienced clerk of our Court, who has been acting for upwards of twenty years, he stated that according to the practice of the Court, after a cause was opened on the hearing, no amendment in matter of substance had ever been allowed. The Court then called in aid the experience of the late Chief Justice Ruffin. He fully supported Mr. Freeman, and stated, that according to the practice of the Court, after a cause is opened on the hearing, if there was a defect in a matter of substance, the bill was dismissed as a matter of course, but without prejudice — the plaintiff paying costs: that he never had known an amendment of the kind to be allowed, and he knew of but one case in' which the Court had departed from the practice of dismissing the bill, and had allowed tire plaintiff, *not to amend here,*but to have the cause remanded, in order to get *80the amendment made below. He further stated that he opposed that infraction of the practice of the Court *totis viribus,*but the motion to remand was allowed, upon the plaintiff’s paying all the costs, as in case the bill had been dismissed : And so we find the entry upon our record, *Parker*and *Coggin*v. *Leathers,*December Term, 1846, to which he referred us.

1 am not disposed to violate a practice which is thus shown to have been uniform since the organization of this Court, and voluntarily consent to allow the cause to be remanded, with a view of amendment below — thereby adding another case to that of *Parker*and *Coggin*v. *Leathers.*

As there has never been an amendment in matter of substance allowed here, the Court will not depart from a fixed practice; and the motion to remand is allowed upon the very special circumstances, that all of the defendants aver that the father of the plaintiff left a last will which was duly admitted to probate — the settlements alleged were made with him in the character of legatee and devisee — and, in fact, all the proofs are taken upon that supposition. So that the defendants have aided the plaintiff, as far ns they can, in setting out his title; but according to the settled practice, a plaintiff must allege and set out a title for himself, and cannot rely on proofs or admissions. Proof without an allegation is no better than an allegation without proof.

Pee. Cukiam. Cause remanded, with costs.