The bill seeks to condemn a Ford truck as contraband property used by the defendant for the unlawful purpose of transporting prohibited liquors, and avers that "the defendant, Avery Williams, was in possession of and operating" the truck, using the same for transporting liquors in De Kalb county. These averments are denied by the answer and this denial casts upon the complainant the burden of proving them.
It is a familiar principle supported by uniform authority that to authorize relief in equity the allegations and proof must correspond, and no matter how just the demand established by the complainant's proof, if it does not harmonize with the allegations of the bill, the complainant is not entitled to relief. Alston et al. v. Marshall et al., 112 Ala. 638,20 So. 850; 3 Mayf. Dig. 352, § 3344. This is not a mere technicality, but is fundamental, and essential to the due and orderly administration of justice in preventing surprise and depriving parties of their rights without due process of law.
The proof offered conclusively shows that the defendant, Williams, was not in possession of, or using, the car on the occasion in question, but that it was in possession of Mabron Williams, a son of the defendant, and there is no proof that Mabron Williams was acting as the agent of the defendant in its use.
The question whether or not the defendant was guilty of "aiding and assisting" Mabron Williams in his unlawful enterprise, within the meaning of the statute, is not an issue presented by the pleadings in this case. In re Gattina,203 Ala. 517, 84 So. 760.
Under the issues as formed by the pleadings and the proof offered, the complainant was not entitled to relief, and the decree of the circuit court is reversed.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *Page 547