Tunnicliffe, as Liqdr. v. Sears

(Concurring). — This case is decided by the majority of the members of the Court upon a question not presented by the pleadings. The facts recited in the opinion appeared in the evidence but did not constitute the case made by the bill of complaint.

The principle is too well, settled and too- generally accepted by the bar to be ignored that the complainant shall obtain the relief sought, if at all, upon the ease made by his bill and not on the ease made by the evidence however meritorious it may be. The allegata and probata must correspond, since however full and convincing may be the proof as…