
    ANDREW P. HOPPER v. JOHN SISCO ET AL.
    1. A recovery will not be allowed on a ease proved if it differ essentially from the ease made by the bill.
    2. H. filed a bill against the devisees and executors of 8., deceased, for tl e foreclosure of a mortgage given by 8., in his lifetime, to H., in the ordinary form, to secure a bond conditioned for the payment of $1200. The defendants set up in their answer, that the bond and mortgage were given as collateral security for certain judgments recovered by different persons against S., which had been assigned to H., and that the said judgments, after the giving of the bond and mortgage, were satisfied by sales, on executions, of other property of S. Proofs were taken by the defendants in support of the defence. H. then proved and exhibited several receipts for moneys paid by him for 8., subsequent to the bond and mortgage, on executions on judgments of different persons against S., two of which judgments were assigned to H., and a receipt from the holder of a due bill given by S., acknowledging the payment thereof by H., in all amounting to $301.04. Held, that under the, pleadings a decree for sale to raise these sums could not be made.
    On the 5th of July, 1841, Richard D. Sisco became bound to Andrew P. Hopper in a bond conditioned for the payment of $1200, in one year, with interest, and on the same day, with his wife, executed and delivered to the said Hopper a mortgage on a tract of land, to secure the payment of the bond. On the 5th of October, 1842, Sisco made his will, by which he devised the said land to his three sons, to be equally divided among them ; and on the 5th of November, 1842, Sisco died. On the 25th of November, 1843, Hopper filed a bill in the ordinary form of a foreclosure bill, against the devisees, widow and executors of Sisco, praying that the defendants may be decreed to pay the said $1200, and the interest thereon, by a short day, and that in default thereof, they may be foreclosed, &c., and the premises be decreed to be sold, and that from the avails of the sale the complainant may be paid the full amount of the said principal sum and the interest thereon.
    To this bill the defendants put in an answer, stating that this bond and mortgage were given as collateral security for certain judgments obtained by different persons against Sisco, which had béen assigned to the complainant, and which, after the giving of the bond and mortgage, were satisfied by sales, on executions issued thereon, of other property of Sisco. Proofs were taken by the defendants in support of the defence.
    The complainant then proved and exhibited five several receipts; one from J. J. Vauderbeck, sheriff of Passaic, dated July 1st, 1841, acknowledging the receipt from Hopper, for Sisco, of $166.91, in full for debt and costs on a suit of Warner against Sisco; one from James Speer, dated July 12th, 1841, endorsed on a due bill given by Sisco to said Speer, acknowledging the receipt from Hopper of $18.41, in full of the said due bill; one from R. S. Speer, late sheriff, dated November 3d, 1841, acknowledging the receipt from the complainant of $20.75, in full of an execution in favor of A. Ryerson, against Sisco; one from Nathaniel Townsend, constable, dated July 7th, 1841, acknowledging the receipt from the complainant of $41.28, in full for a judgment of Samuel S. Townsend against Sisco, assigned to the complainant; and one from D. Roe, dated July 7th, 1841, acknowledging the receipt from the complainant of $53.69, in full of a judgment in favor of C. and D. Warner, against Sisco, which had been assigned to Roe, and which Roe had assigned to the complainant.
    The complainant’s counsel, on the argument, contended that a decree might be made, under the pleadings, for the sale of the mortgaged premises to pay these sums.
    
      E. H. Whelpley, for the complainant.
    
      D. Barkalow, for the defendants.
   The Chancellor.

The complainant cannot be permitted to abandon the ease made by his bill, and make another case by his proofs. I do not know that there is any sufficient reason to believe he would have abandoned the case made by the bill, had it not been for the proofs made in defence. Be that as it may, a decree must conform to the case made by the bill.

The merits of the case, which this complainant has attempted to make by his proofs, are not presented to the court by this bill; and to allow a complainant to depart from the ground of relief taken in his bill, and to make another case in his proofs, would be against the good sense of pleading, which requires that every material allegation should be put in issue, that the parties may be apprised of the matters in controversy, and be prepared to meet them by testimony.

A recovery cannot be allowed on a case proved, if it differ essentially from that alleged by the bill. 5 Munford 314; 6 Johns. Rep. 564; 3 Rand. 263; 2 Bibb 4, 26.

The bill must be dismissed, with costs, but without prejudice to the right of the complainant to file a new bill, if he thinks he can maintain a suit on a case differently stated.

Bill dismissed.

Cited in Van Riper v. Claxton, 1 Stockt. 304.  