Opinion
(December Term, 1847.)
1. Every bill must state the ground upon which it asks the interference of the court. It will not do to state one and prove another.
2. Care must be taken to put in issue in the bill whatever is intended to be proved by the plaintiff; otherwise, he will not be permitted to give it in evidence.
3. The statement of the case and the prayer for relief, together, constitute the essence and substance of the bill.
4. When the father made an entry of the land in his own name, and afterwards directed the entry in his son's name, and, in the meantime, another entry was made: Held, that the son was not entitled to have a grant to the second enterer, prior to his own, set aside.
CAUSE removed by consent of parties from the Court of Equity of BLADEN, at Fall Term, 1847.
Strange for plaintiff.
D. Reid for plaintiff.
The bill alleges that on 17 January, 1843, the plaintiff made an entry in the office of the entry-taker of Bladen, of 400 acres, and caused it to be surveyed, when it was ascertained that there (19) were but 16 1/2 acres liable to entry; that he caused a plat to be made, and procured a grant to issue, on 5 January, 1844. The plaintiff charges that the defendant, on 23 January, 1843, made an entry of 150 acres, which covered the entry of 16 1/2 acres made by him, and procured a grant for it, dated 29 February, 1843; that at the time he made his entry and procured his grant he well knew of the entry previously made by him. The bill prays a conveyance of the land by Hawes to him. The defendant admits the making of his entry and procuring his grant, but denies that, at the time of his entry, he knew that the plaintiff had made a previous entry of the same land, and denies that the entry of 17 January, 1843, was made by the plaintiff, but alleges it was made by George Russ, the father of J. W. Russ.
Under the present frame of the bill the plaintiff cannot obtain the relief he seeks. He alleges that the entry of the 16 1/2-acre tract was made by him; it appears from the entry itself, and from the testimony on file, that it was made by George Russ, and in his name.
The force of this fact is attempted to be evaded, in the argument before us, by showing that George Russ acted as the agent of the plaintiff, and the deposition of the former alleges the fact to be so; and he further testifies that he so told the entry-taker at the time, and that he wished the entry made in his son's name. When he discovered the mistake, some six months thereafter, he mentioned it to the entry-taker, and told him, if it could it ought to be altered. Admit these facts all to be true, still it does not strengthen the plaintiff's claim to (20) the relief he seeks; he has not placed his equity on that ground. Every bill must state the ground upon which the plaintiff asks the interference of the court. It will not do to state one and prove another. Whatever is essential to the rights of the plaintiff must, if within his knowledge, be alleged positively and with precision, and the facts so set forth constitute the case, to which alone the Court can look, and the only ground for relief. Mitford Pr., 42; Skinner v. Bailey, 7 Day, 342; Flint v. Rives, 3 Ves., Jr., 342. Care must be taken to put in issue in the bill whatever is intended to be proved by the plaintiff; otherwise he will not be permitted to give it in evidence. 1 Ves., 483; 11 Ves., Jr., 240. The reason is, the Court must pronounce the decree secundum allegata et probata. The statement of the case and the prayer for relief, together, constitute the essence and substance of the bill. Cooper's Eq. Pl., 4 to 9. The depositions of the two other witnesses, Francis C. Lewis, the entry-taker, and Thomas Lewis, his brother, and who was present and aided in making the entry, are on file. They prove that the entry was made by George Russ, the father, and in his own name, and that he did not direct it to be made, in the name of his son, the plaintiff, nor was his name mentioned. The alteration in the entry, made by the entry-taker at the request of George Russ, twelve months after the original entry was made, cannot affect the decision of the case; and we mention it for fear it might be supposed we had overlooked it.
The bill must be
PER CURIAM. Dismissed with costs.
(21)