CONTEE v. DAWSON.—2 BLAND. 269

It is a rule, universally admitted, that the attegata and probata,
most substantially correspond. A party cannot, in any case, be
allowed to avail himself of proof of any matter, which he has not
alleged; nor can the opposite party be called on to sustain a posi-
tion not asserted; or to establish a fact which, by the course and
terms of the pleadings, has been admitted to be true. An allega-
tion * of insufficiency of assets is tantamount to an assertion,
that the estate of the deceased is insolvent. It is a matter 286
presumed to be within the knowledge of the executor; and if he
does not expressly and distinctly assert the fact of insufficiency,
he virtually admits a sufficiency of assets, at least to satisfy the
demand then made of him. It is impossible to consider the allega-
tion in this answer as an assertion, that the estate of the late Wil-
liam Dawson is insolvent and insufficient to pay all his debts. The
allegation, "that the assets now in her possession are. insufficient,"
is unequivocal; the certainty of assets accruing, is distinctly re-
ferred to; and it is evident, from the general complexion of the
answer, that the respondent could not with a sate conscience haz-
ard the assertion, that the estate of her testator was insolvent.
She has not, therefore, alleged, that there was not a sufficiency
of assets to satisfy the claims made by this suit. Dagley v. Crump,
Dick. 35; Roberts v. Roberts, Dick. 573; Pullen v. Smith, 5 Ves.
21; Freeman v. Fairlie, 3 Meriv. 29; Drewry v. Thacker, 3 Swan.
548; Johnson v. Aston, 1 Cond. Chati. Rep. 38.

But admitting such an averment to have been made, it has not
been sustained by proof. The insufficiency of assets turns alto-
gether upon the admission of the claim of James Dawsou, as a
valid and subsisting debt. The proof is, that the witness some
time prior to the year 1816, when William Dawson caine to this
country, saw that he had charged himself on his books of accounts,
with a bond given to James Dawsou, his son, to secure the pay-
ment of the sum of $16,000, after his, William Dawson's death;
and that the witness heard, in the family, and from his mother,
the defendant Eleanor Dawson, before the institution of this suit,
that James Dawsou had such a claim against the now late. William
Dawson, and that a small part of it had been paid; and, yet it was
not until after Eleanor Dawson, as lie says, had been informed of
the claim in this case, and another claim against the estate of her
testator, that she was induced to obtain leave to reform her account
with the Orphans' Court, for the purpose of introducing into it.
then for the first time, this claim of James Dawson. But failing
in the attempt to have this claim allowed by that Court; and after
she had heard that James Dawson had left England for India, she
herself caused a suit to be instituted in his name against herself;
and, on the 2d of June, 1826, confessed a judgment for the sum
of $19,834.35, with interest from the 31st of December, 1818, and