delivered the opinion of the Court.

The Court is of opinion, that as there is no proof in the record that the bond executed by James Burnley deceased, to Wiley Dickinson, with condition to make *373said Dickinson a title to the land therein mentioned, bound the heirs of said Jam.es Burnley; and the fact being neither alleged in the bill or admitted by the answers, it was erroneous, in the absence of any such allegation and admission or proof, to decree against the heirs of said Burnley. But the Court is of opinion, that as the bond appears to have been made an exhibit with-, and part of the bill, and has been lost or mislaid since it was filed, and as the omission to allege in the bill directly, that the heirs were so bound, and to admit or deny the fact in the answers, may have proceeded from the circumstance that it appeared on the face of the bond that the heirs were so bound, and no notice of this matter seems to have been taken by the parties in the Court below, it would operate as a surprise upon the appellee to hear and decide the cause finally, upon the proofs now in the record, without affording an opportunity to furnish evidence of the fact necessary to sustain the elaim. Therefore reversed with costs, and remanded with instructions to give the plaintiff leave if asked for, to amend his bill, and for further proceedings in order to a final decree.