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1822.

with it. If Cameron's entry be invalid. then the decrees are right, either because Young's try is good, Crocket or because the legal title was in Lee, when they were made.

The testimony which has been taken in these causes, certainly is very strong in support of the decrees of the Circuit Court; but the counsel for the appellant contends that so much of this testimony as respects the vagueness of Cameron's location must be disregarded, because neither its vagueness nor its certainty has been put in issue. Lee has not averred in his bill, nor alleged in his answer, that this location is vague, nor has he any where, or in any manner, questioned its validity.

The principle advanced by the appellant's counsel cannot be controverted. No rule is better settled than that the decree must conform to the allėgations, as well as to the proofs in the cause. The location being set out in the pleadings, the Court can undoubtedly notice any intrinsic apparent defect. If it be void in itself, no testimony can sustain it, and it would be deemed void on a demurrer to the bill. But if it be not void in itself, if its validity depends upon facts to be proved in the cause, then its validity ought to be put in issue.

The counsel for the appellee does not directly controvert this principle, but endeavours to withdraw his case from its operation, by contending that terms are used in the pleadings which are equivalent to a direct allegation that Cameron's location is too vague to be sustained.

If in this he is correct, the consequence he draws

V.

Lee.

1822.

Crocket

V.

Lee.

from it will be admitted; for it will certainly be sufficient, if the matter to be proved be substantially alleged in the proceedings. How, then, is the fact?

In his answer to Crocket's bill, he says that he aoes not "admit that the survey has been made agreeable to location or to law."

This allegation certainly questions the survey. If it vary from the entry, if it be chargeable with any fatal irregularity, if it be in any respect contrary to law, such defects may be shown, and the party may avail himself of it to the extent justified by his test mony, and by the law. But this allegation is confined to the survey. It does not mount up to the location, nor does it draw that into question. It gives no notice to Crocket, that his entry was to be controverted.

The bill filed by Lee, is equally defective in this respect. After setting out his own title, he states that of his adversary; and, after reciting the certificate granted to Cameron, subjoins that Crocket claimed the land" in dispute by virtue of the said improvement, and having caused the same to be surveyed contrary to location, and to law, and was to interfere with❞ his (Lee's) claims, had obtained a prior patent, &c.

This allegation, like that in the answer, draws into question only the survey. It does not controvert the location or entry.

The counsel for the appellant says it would be monstrous, if, after the parties have gone to trial on the validity of the entry, and have directed all their

1822.

V.

testimony in the Circuit Court to that point, their rights should be made to depend in the appellate Crocket Court on a mere defect in the pleadings, which had entirely escaped their observation in the Court where it might have been amended, and the non-existence of which would not have varied the case.

The hardships of a particular case would not justify this tribunal in prostrating the fundamental rules of a Court of Chancery; rules which have been established for ages, on the soundest and clearest principles of general utility. If the pleadings in the cause were to give no notice to the parties or to the Court of the material facts on which the right asserted was to depend, no notice of the points to which the testimony was to be directed, and to which it was to be limited; if a new case might be made out in proof, differing from that stated in the pieadings, all will perceive the confusion and uncertainty which would attend legal proceedings, and the injustice which must frequently take place. The rule that the decree must conform to the allegations, as well as to the proofs of the parties, is not only one which justice requires, but one which necessity imposes on Courts. We cannot dispense with it in this case. But although the entry is not put in issue, the survey is; and if that be made on ground not covered by any part of the entry, the decrees would, on that account, be affirmed.

It must at once occur that in a case where the entry is in reality attended with much uncertainty, there will be some difficulty in showing how much a

Lee

1822.

Crocket

V.

Lee.

survey varies from it, unless the survey be made on land entirely different from the entry. That does not appear to be the fact in the present case.

Cameron's

entry calls for the head right hand fork of Welles' branch, for the head of a small run that empties into the north fork, and to lie about one and a half miles above the war path that crosses the north fork. The survey is upon the head waters of these streams, and lies a small distance above the war path that crosses the north fork. There is reason to believe, that, were the location to be sustained, the survey would be found to conform to it in part, though not perhaps entirely. This Court has no means of ascertaining how far they agree, and how far they disagree, and the decrees of the Circuit Court musi be reversed.

But as this reversal is not on the merits of the case, and the Court is rather inclined to the opinion that the decrees on the merits are right, no final decree will be directed in either cause, but each will be remanded to the Circuit Court, with directions to permit the parties to amend their pleadings.

ANDREW CROCKET, Appellant,

V.

HENRY LEE, Respondent.

DECREE. This cause came on to be heard on the bill, &c. and was argued by counsel; on consideration whereof, this Court is of opinion that the decree dismissing the plaintiff's bill was erroneous, in this, that the plaintiff is shown to possess the prior and better equitable title, unless his location, which is the

foundation to that title be void for want of certainty, a point not properly examinable under the pleadings in the cause, as they now stand, because it is not put in issue. This Court doth therefore reverse the said decree, and doth remand the cause to the Circuit Court, that the parties may be permitted to amend their pleadings, and that farther proceedings may be had therein, according to law.

SAME

V.

SAME.

DECREE. This cause came on to be heard on the bill, &c. and was argued by counsel; on consideration whereof, this Court is of opinion that the decree directing the defendant to convey to the plaintiff the land therein mentioned, is erroneous in this, that the defendant is shown to possess the prior and better equitable title, unless his location, which is the foundation of that title, be void for want of certainty, a point not properly examinable under the pleadings in the cause, as they now stand, because it is not put in issue. This Court doth therefore reverse the said decree, and doth remand the cause to the Circuit Court, that the parties may be permitted to amend their pleadings, and that farther proceedings may be had therein, according to law.

1822.

Crocket

V.

Lee.

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