Joseph Story

“ The proper place for the averment of such a fact is the bill; but if that be defective, the defect may be cured by the subsequent pleadings. If a material fact be not averred in the bill, it is not a good bill. To constitute a good bill, it must set forth such a case as will, upon its face, entitle the complainant to a decree in his favour. He must state his title in such a manner as to give the court to understand the character in which he claims, and the nature and extent of his interest. ”

“ In England, proceedings to establish the claims of certain persons who live there, were instituted for the purpose of obtaining the property of the testator in that kingdom; and the proceedings were dismissed on the ground that the domicil of the testator was in America; and the whole of the questions in the case, and all the claims of those who made claims were properly to be litigated in Pennsylvania.
The executor has not undertaken to represent the interests of any one, but he stands independent. ”

“ The only parties the court can know, are those in the record. They cannot permit counsel who represent parties who may think themselves interested, not in the record, to come in and interfere. Let the argument proceed, and if the court see that the proper parties are not before the court, they will act as may be required.
Mr Ingersoll, epresenting the executor, handed to the court the proceedings of the circuit court of the district of Pennsylvania, on a bill of review filed by the heirs of John Aspden of Old street, London ”

“ An answer not only meets the case set forth by the bill, but may set forth new matter essential to the defendant's case, either to add to or qualify the case exhibited by the bill, or to make out a new and independent case for himself. If the new facts stated in the answer are denied by the plaintiff's replication, they are put in issue; if they are not denied, they are submitted to the court, by whom their legal effect is determined. ”

“ The bill contains no averment of the actual domicil of the testator at the time of the making of his will, or at the time of his death, or at any intermediate period. Nor does the answer contain any averments of domicil, which supply these defects in the bill, even if it could so do; as we are of opinion, in point of law, it could not. Every bill must contain in itself sufficient matters of fact, per se, to maintain the case of the plaintiff ”

“ Coop. 5, 7. If then the plaintiff omits to state his case in such a manner as to apprise his adversary of a material fact in dispute; and the defendant shows, not only by his answer, but by his evidence, that he is fully aware of it; how can it be alleged that he is taken by surprise; and how can the court be at a loss for the means of deciding the question raised by it? After such an answer, no reasonable objection could be made to any evidence on the subject of domicil offered by the plaintiff ”