concurring.
After the making of the original master’s report and before the entry of the final decree, on motion of complainants and notice to defendants, the chancellor referred the cause back for the sole purpose of taking evidence in'regard to the payment or non-payment of rent by the defendants “ since December, 1894, for the premises mentioned and described in the bill,” etc., and directing the master to make “ his finding as to said fact of payment or non-payment of said rent and the amount of rent due from said defendants to said -complainants for said premises,” etc.
Also after the order of reference was made, defendants asked to file an amended answer, which was refused, and the order of re-reference was amended so as to require the master “ to take evidence and ascertain and report to the court the amount of rent due the complainant, under the lease in question in said cause, up to the date of making his report under this order. And that at the hearing before said master the defendants shall be allowed and permitted to make any and all defenses, legal or equitable, which they may have as to the rent due and unpaid under the terms of said lease except so far as such defenses are inconsistent with the findings of said master in his report heretofore made to this court upon any other matter than the amount of rent due under said lease.”
On the re-reference, besides the evidence offered by complainant, defendants offered evidence tending to show a vacation and surrender of the demised premises to the agent of complainant on April 30, 1895, which was about four months after the time to which they had paid rent, and the master found that they did vacate the premises, but “ without any sufficient reason therefor.” The full terms of the lease are set up in the original bill,' and it prays for a decree for all rents which shall have accrued and remain unpaid at the time of entering the decree.
It will thus be seen that the defendants, appellants herein, have had every opportunity which could possibly have been afforded them by the most specific and technical pleading^ of presenting any defense which they had to the claim of complainant for rent which became due after the filing of the bill. The general rule is, no doubt, that relief given must be based upon allegations made, but the Supreme Court has made exceptions to the rule, as have also other courts of the highest respectability. Besides the cases of accounting and in the foreclosure of mortgages mentioned by Mr. Presiding Justice Sears in his opinion, the following cases, relating to other and quite different subjects of relief, recognize exceptions to the rule, viz.: Brown v. Minor, 128 Ill. 157; Sherman v. Foster, 158 N. Y. 587-93, and cases cited; Peck v. Goodberlett, 109 N. Y. 180-9; Worrall v. Munn, 38 N. Y. 137-48.
If it was an error to decree the payment of the rent which became due after the filing of the bill, it was error without prejudice, and therefore can not avail appellants.