Eagan v. Delaney

Citations

• 16 Cal. 85
• 1860 Cal. LEXIS 171

Syllabus

<p>Whebb, in suit for a mining claim, plaintiff in his complaint states the particular facts constituting his title, and on that title seeks a recovery, and the answer denies such title, plaintiff must prove his title as averred, at least in substance, and he cannot, against defendant’s objection, recover on another and different title.</p> <p>And where, in such case, plaintiffs were permitted to prove and recover on a title other than the one so set up, it was error in the Court below to refuse a new trial, the motion for which was based on affidavit of defendant that he was taken by surprise arising out of the frame of the pleadings, and that he could have rebutted plaintiffs’ case but for this surprise.</p>