RESPONSE TO PETITION EOR REHEARING.
Opinion by
Lewis J., Beatty, C. J.,concurring.
The first point made by counsel for respondent in his petition for rehearing is, that this Court erred in holding that the allegations of the defendant’s answer cured the defect in the bill, and several cases are referred to as announcing a different rule. But of those cases cited by counsel which we have been able to examine, not one of them sustains the position assumed by him.
In James v. McKernon, 6 John. 543, it was simply held that “ the Court could not afford relief not sought for by the bill, nor entertain the question of fraud, which was not so much as suggested by the pleadings.”
Surely, at this day, no precedent is required to maintain a rule so thoroughly settled and so strongly recommended by the soundest and clearest principles of general utility. The Chancellor in that case set aside, upon the ground of fraud, a certain agreement or deed upon which the defendants based their defense, although relief was not sought upon that ground, nor was fraud alleged in the pleadings. As the plaintiffs in their bill did not attempt to attack the validity of the deed upon the ground of fraud, nothing is clearer than that they could not prove fraud or recover upon that ground. And the reason is clearly given by Chancellor Kent in delivering the opinion of the Court.
The good sense of pleading,” says the Chancellor, “ and the language of the books, both require that every material allegation of this kind should be put in issue by the pleadings, so that the parties may be duly apprized of the essential inquiry, and map be enabled to collect testimony and frame interrogatories, in order to meet the question. Without the observance of this rule, the use of the pleading becomes lost, and parties may be taken at the hearing by surprise.” We do not find a solitary expression in that case which is in conflict with the rule as announced by this Court in its *192original opinion. The question whether a direct statement in an answer would cure a defective allegation in the bill, was not so much as mentioned in the case. The question in Crockett v. Lee 7 Wharton, 522, is precisely the same as that passed upon in James v. McKernon. The point before the Court is clearly shown by the following statement made by the learned Chief Justice who delivered the opinion of the Court :
“ 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 anywhere or in any manner questioned its validity.”
So the Court held that relief could not be granted upon evidence making out a case different from that presented by the pleadings. Because, says the Court: “ 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 rights asserted were 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 pleadings — 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 proof of the parties is not only one which justice requires, but one which necessity imposes upon Courts.”
Attention is also called to a doctrine of Mr. Justice McLean in the case of Jackson v. Ashton, 11 Peters, 229, where it is said: “ That no admissions in an answer can under any circumstances lay the foundation for relief under any specific head of equity, unless it be substantially set forth in the bill.”
As we interpret this language, it certainly does not conflict with the rule which was answered by this Court in its first opinion. The opinion evidently intended to be conveyed by Mr. Justice McLean was, that the admissions of an answer are not admissible to make *193out a case for the plaintiff different from that which he has attempted to make out by his bill, or to afford him relief upon grounds different from those upon which he sought it in his complaint. And such' is doubtless the correct rule of law. But we can find no case where it has been held that a direct allegation or admission in an answer, of some one fact which was omitted from a complaint, otherwise complete, and clearly showing the relief sought, would not cure such defective complaint. On the contrary, the case of Rogers v. Sauton, referred to in the first opinion, and which was a suit in chancery, fully supports the rule as we have announced it, and Mr. Chitty states the rule at law in the following manner:
“If, however, the adverse pleading expressly admit the fact which ought to have been stated in the defective pleading, and which is substantially incorrect in omitting it, the error becomes, it seems, immaterial.” (1 Chitty on Pleading, 672.)
No hardship or injury can possibly result from such a rule.
The principal object of pleading is to succinctly and intelligibly present the facts upon which relief is sought to the Court, and to notify the respective parties of the character of case which they will have to meet. The complaint, in this case, clearly notifies the defendant of the character of the plaintiff’s case; and although it is not completely made out by reason of an omission to allege a fact material, and upon which the right of recovery depended, yet his case is perfected by an admission in the answer of the omitted fact. Thus, the plaintiff’s case is fully presented to the Court by the pleadings. If, under such circumstances, the relief awarded to the plaintiff be in conformity with that sought by him, and it is justified by proof legitimately admitted under the pleadings, the defendant cannot complain that he was injured by the defect in the complaint. Upon this point, therefore, we are satisfied that the correct rule was announced in the original opinion.
We see nothing in the other point made by counsel for respond^ ent. True, the rule made by the Court was to show cause why a perpetual injunction should not issue; but clearly the respondent could not be misled by what seems a mere clerical misprision. And indeed, the record shows that he was not; for it appears, the question argued upon the hearing was, whether a temporary injunc*194tion ought to issue; and the appeal is from the order refusing temporary and not a final injunction.
Rehearing denied.