#### ELIZABETH MALLORY *against*JOHN MALLORY, EX’R. OF CHARLES MALLORY AND OTHERS.

A Court of Equity will not entertain a bill for specific performance, in wbiclx the material terms of the contract sought to be enforced, are not distinctly set forth.

*Hence,*a hill brought by the widow against her husband’s devisees and representatives for specific performance of an ante-nuptial agreement to settle upon her *ts*a plantation and permanent home fox' life,” must distinctly set forth what land, where situate, the uumber of acres, &c.

Xn equity, as at law, the proofs must correspond with the allegations of the bill 5 and the Court will neither allow substantial amendments of the bill to be made on the hearing,} in order to meet objections on account of variance, nor, except under peculiar tíircum » *81stances, will it remand the cause, with a view to having such amendments made in the Court helow.

See *Williams*v. *Chalmers > ante.*

(The case of *Foster*v. Jones, 2 Dov. & Bat. Eq. 201, cited and approved.)

Cause removed from the Court of Equity for Granville coum ty, at Spring Term, 1852.

This was a bill filed by the plaintiff, as the widow of Charles Mallory, deceased, against the executor and devisees and legatees of the said Charles, for the specific execution of an ante-nuptial marriage contract.

It stated that the plaintiff was a maiden lady of about fifty years of age, boarding at the house of a friend in the county of Orange, and owning ten young and valuable negro slaves, when Charles .Mallory, who was then a widower, about sixty-five years old, made proposals of marriage to her; that the said Charles resided on a tract of land which he owned in the county of Granville, about twenty miles from the house of the friend with whom she was boarding ; that he had then five children by a former marriage, all of whom were of age and settled in life, having been advanced from time to time by their father; that she at first declined acceding to his proposals, but yielding at last to his importunities and the advice of her friends, she consented to marry him, provided he would make a suitable settlement upon her; that he readily consented to do so, and it was agreed be* tween them, that he should have a deed of settlement prepared, by which “ he would assure her in the title to all her slaves, and in their increase, together with the profits and proceeds of their labor absolutely and forever, free from all control or right in or claim to them, their increase, and the profits of their labor on his part, or that of his children by his former marriage ; and that she should continue to command and control the said slaves in all things as though she were single. He further proposed to settle on her by said deed a plantation as a permanent home for her life.” "The bill then stated, that the said deed of settlement was never prepared by the- said Charles ; that he made many false excuses why it was not done, and practiced many fraudulent arts and devices to her to induce her to marry him before it was done, solemnly promising her that it should be done as soon after their *82marriage as a suitable person could be procured to draft the instrument ; that she^ relying upon his solemn promise; did marry him, without the said deed having been prepared, or any writing evidencing the said agreement having been drawn up; that after the marriage, he repeatedly promised to fulfil his said contract by executing a proper deed, or by providing for her to the same extent in his will; all which promises he failed to perform, and that he at last died, leaving a will, which was duly admitted to probate, in which he made a provision for her far short of what she was to have by the said deed of settlement. The prayer of the bill was for a specific execution of the contract therein before set forth. Answers were filed by the defendant, John Mallory, as the executor of the said will, and by the other defendants as devi-sees and legatees therein named, and who were also the heirs at law and next of kin of the said Charles Mallory.

In all the answers it was positively denied, so far as the defendants had any knowledge, information or belief, that the said Charles ever made any promise to the plaintiff, either before or after his marriage with her, to execute a deed of settlement of any kind ; and all the defendants except the executor expressly referred to and relied upon as a defence, the Act making void parol contracts for the sale of land and slaves. A replication was put in to the answers, and much testimony was taken by both parties ; after which the cause was set for hearing, and transferred to the Supreme Court.

*Moore,*for the plaintiff.

*Lanier*and *Gilliam,*for the defendants.

Battle, J.,

after stating the case as above set forth: This cause was brought on for hearing at the last June Term, and has been heard again at the present term. The main question, whether the contract being by parol, can, under the circumstances of fraud charged in the bill, be specifically executed in this Court, has been fully and ably debated by counsel on both sides. The question is a very important one, and it is a matter of regret that the state of the pleadings and proofs precludes us from considering and deciding it. But it is manifest that the bill cannot be *83sustained in its present shape. The contract set forth in it, so far as the land is concerned, is entirely too vague and uncertain. It is, that the intended husband was to secure the plaintiff by the deed of settlement *“*a plantation and permanent home for her life-” What plantation? Where situated? How many acres? 'What value? With regard to these important particulars, the contract is entirely silent; and yet it is one of the first principles of the doctrine of specific performance, that, the contract sought to be performed must be certain and clear in all its material terms. 1 Chit. Gen. Prac. 828; 2 Story’s Eq. Jurisprudence, sec. 751 and 764. It is true that the bill states that the husband, at the time of the marriage, lived on a certain plantation in the county of Granville, which he continued to own during his life, and of which he died seised, and prays that that particular plantation may be conveyed to her for life. But there is nothing in the pleadings to show *that*to have been the plantation which the parties had in contemplation ; and if we look into the proofs, instead of finding any thing to solve the difficulty, we find uncertainty rendered still more uncertain.

The counsel who argued the cause in this Court, seeing the force of this objection endeavored to avoid it by abandoning that part of the contract which related to the land, and insisting upon the specific execution of it so far as it related to the slaves. This he contended he had a right to do upon the ground, that the plaintiff was not compelled to insist upon the performance of all that was stipulated in her favor, but might give up such part as she chose ; and he relied also upon the application of the maxim *ulile per inutile non viliaiur.*Yielding to the counsel that for which he contends, still an insurmountable obstacle ris presented by the proofs. The weight of the testimony taken by the plaintiff to establish die terms of the proposed marriage settlement is, that she was to have her property, and he to have his. That is certainly not the contract stated in the bill, and yet in equity, as well as at law, the proofs must correspond with the allegations, and a substantial variance is as fatal in the one as in the other. *Foster*v. Jones, 2 Dev. & Bat. Eq. 201. The counsel, to remove this objection, moved the Court for leave to amend the bill, by striking out that part of the statement of the contract which related to the *84land, and inserting, that the contract was, that the plaintiff’s slaves were to be settled upon her, and that she, in consideration thereof, was to relinquish all claim to any portion of his estate, in the event of her surviving him : And further to amend the prayer by striking out what regards the land and adding, that she submitted to execute a proper release of her claims to any part of her husband’s estate, either under the will or by way of dower or otherwise. The counsel moved further, that if he were not allowed to amend here, the cause might be remanded to the Court below, in order that he might apply for leave to amend there. The amendment proposed is manifestly one of substance, as it will change very materially the frame of the whole bill. The contract to be stated will be essentially different, claiming less for the plaintiff, and conceding something to the husband. Such being Ihe case, we cannot allow the amendment in this Court, as we have decided at this term in *Williams*v. *Chalmers.*To the reasons given in the opinions filed in that case, it may not be inappropriate for us to add, that if we yield to this application, (upon the ground urged by the counsel, that it is useless to send the case back, when it will be immediately returned to us,) another and another will be made, until the result will be that causes totally unprepared for a hearing will be removed to this Court, under the expectation that they can be amended in any manner and to any extent, after they get here. A jurisdiction, in effect original, will be thus imperceptibly usurped, which the Legislature has never confered upon it, and never intend to confer upon it.

The reasons given for the order in *Williams*v. *Chalmers*are conclusive against the allowance of the alternative motion. There is a marked difference between the two cases. In *Williams v. Chalmers,*the title which the plaintiff had failed' to set out, was aided, as far as it could be, by the answers ; and all the proofs were taken upon the supposition that there was no defect in that particular. Here the contract which the plaintiff seeks to enforce is denied out and out. The defendants aid the plaintiff in notli-i ng — mislead her in nothing. She is informed ffom the beginning that every matter of law and every matter of fact which can be disputed, will be disputed. She cannot say that the defendants have lulled her into a false security, and claim the indulgence of *85the Court on that account. With a fair warning that the defendants would contest every debateable question, either of law or fact, she brings on her cause for hearing, and she must abide the usual result of failure.

The uniform practice of the Court, which the nature of its jurisdiction rendered necessary, and which has been acted upon from its organization to the present term, with a solitary exception, and that exception opposed by the late very able Chief Justice, ought not to be departed from, unless under very peculiar circumstances, such as we have shown do not exist in this case.

But it is urged that the only difference in effect, between remanding a cause upon the payment of all costs, with a view to an amendment in the Court below, and dismissing it without prejudice, is in the delay which the latter course may occasion, and-that, therefore, the Court ought rather to adopt the former, in order to expedite the cause.

Without inquiring whether there may not be a more important-difference, either to one party or the other, with regard to the answer or the proofs, than that which has been assumed, we cannot be insensible to the advantage of having a settled rule, and to the necessity of adhering to it. Such rule may perhaps sometimes operate more or less harshly ; but the very fact that it has so long existed ¿s a rule, is strong evidence in its favor, that its general effect has been beneficial.

The bill must be dismissed with costs, but without prejudice.

Per Cúriam. Bill dismissed with costs.