368 HIGH COURT OF CHANCERY.

It is stated by Mr. Justice Story, in his Treatise on Equity
Pleadings, sec. 257, "that every fact essential to the plaintiff's
title to maintain the bill, and obtain relief, must be stated in
the bill, and of course no proof can be generally offered of facts
not in the bill; nor can relief be granted for matters not
charged, although they may be apparent from other parts of the
pleadings and evidence, for the court pronounces its decree,
secundum allegata etprobata.^ And in section 28 of the same
work, the author says, "it may be proper, however, to remark,
that every material fact, to which the plaintiff means to offer
evidence, ought to be distinctly stated in the premises, for
otherwise, he will not be permitted to offer or require any evi-
dence of such fact."

These principles have been repeatedly sanctioned by the
Court of Appeals of this state, and the rule cannot be question-
ed, that a complainant in his bill, must put in issue whatever
be intends proving, otherwise, the evidence will be excluded.
The Court of Chancery decrees only secundum allegata etpro:

bata. Haywood vs. Carroll, 4 H. & J., 518.

This rule is necessary not only to prevent surprise, but the
abrogation of it would enable the complainant to take from his
adversary the benefit of his answer, which, if responsive to the
averments of the bill, would require a stronger measure of evi-
dence to overcome, than if the fact to be proved was not no-
ticed in the pleadings.

In the treatise, of Mr. Justice Story, already referred to, sec.
264, the rule is pressed still further; it being there said, "that
if an admission is made in the answer, it will be of no use to
the plaintiff, unless it is put in issue by the bill; and the con-
sequence is, that the plaintiff is frequently obliged to ask leave
to amend his bill, although a clear case for relief is apparent
upon the face of the pleadings."

In this case, the evidence of all the acts of part performance
which are relied upon, to save the alleged agreement from the
operation of the statute of frauds,, is excepted to by the defend-
ants, "upon the ground, that the bill of the complainants
alleges no part performance of said supposed contract or agree-