The court are satisfied with the circuit decree.
In respect to the defendant’s 6th ground of appeal, that there is no charge in the bill, as to Mary and her children, upon which the decree can rest, it may be proper to offer a remark:
The rule is stated in Coop. Eq. Pl., 6, that whatever is necessarily within the complainant’s own knowledge, should be alleged positively. On the other hand, if the facts essential to the determination of the complainant’s case are charged in the bill, to rest on the knowledge of the defendant only, or must of necessity be within his knowledge only, a precise allegation is not required.— In the next page it is said, “ a charge in general terms, where it is the point on which the merits of the cause turn, and does not come in collaterally and incidentally, will warrant the production of evidence to particular facts.” Considering the character of the com*17plainant’s bill, the court is of opinion, that the charge was sufficiently definite. But when it is remembered that the evidence in regard to Mary and her children, was received without objection on the part of the defendant, and that he replied to it fully, it would be irregular to permit him, at this stage of the proceedings, to aver that this matter was not properly put in issue.
Clark & M’Dowell, Sol. for complainant. W. F. Desaussure, Sol. for defendant-.The appeal of both parties is dismissed, and the decree affirmed..
Johnson, Harper and Johnston, Chancellors, concurred.