CONTEE v. DAWSON. 285

in the state of Virginia, without any further authentication what-
ever. This, if allowed, would place the simple attestation of every
justice of the peace, over the whole Union, upon a footing with that
of such officers of this state. I do not think it would be safe to
extend our comity so far. A reasonable and just degree of caution
demands, that some solemn additional public testimonial should be
required to shew, that the judicial officer or magistrate before whom
such an affidavit has been made was, in truth, the public function-
ary he states himself to be. I am, therefore, of opinion, that the
authentication of this paper is not such as to entitle it, on that
ground, to be received as the answer of the defendant Philip A.
L. Contee.

But the plaintiffs have expressly consented to receive this as the
answer on oath of Philip A. L. Contee, without any further or
other authentication; and that they may so receive it, is warranted
by every day's practice of this court, as well as by many authori-
ties to be found in the English books to the same effect, (m) If,
on its being so received by the plaintiff, it will bind the respondent
as effectually as if made upon oath, I can see no reason why it
should not be equally as binding upon any co-defendant so far as
his interest may be affected by the answer of such defendant on
oath; since such co-defendant could not except to it because of its
not having been sworn to, or because of its insufficiency, or for any
other cause. I am, therefore, of opinion, no fraud being shewn or
even intimated, that this must be regarded as the answer of Philip
A. L. Contee, to all intents and purposes whatever.

The next inquiry is, whether Eleanor Dawson has alleged, or
shewn a deficiency of assets. In her answer she says, 'that she
has not yet been able to settle up the estate of the said testator,
and that there are considerable debts now due to the same which
are still unpaid; and the assets now in her possession are insuffi-
cient to discharge the debts due by the testator.'

It is a rule, universally admitted, that the allegata and probata,
must 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-

(m) ——— v. Lake, 6 Ves. 171; ——— v. Gwillim, 6 Ves. 285; Bayley v. De
Walkiers, 10 Ves. 441; Harding v. Harding, 12 Yes. 159; 1 Harri. Prac. Chan. 285.
37 V.2