The authorities cited by the counsel for the defendant are inapplicable. They relate to instances where the discretion of the circuit judge has been exercised in confining a party to the case made by his proof. Here the party, before characterizing his case by proof, disclaimed any intention of confining his right of recovery to words spoken since the first trial, and the offered evidence was rejected on the sole ground of its not being consistent with the opening. We think the discretionary power which a judge has in controlling proceedings at the trial does not extend so far.
New trial granted.