specially concurring:
I concur in the judgment and in the opinion of Judge Whitman, in so far as it maintains the admissibility of the testimony excluded. To what he has said, it may be added that the pleading was so framed as to show the nature of the particular facts intended to be proved. Consequently, the plaintiff can not say that he was surprised by a case which he could not be prepared to meet. Mitford’s Ch. PI. p. 46, (note i.); 2 Y. & J. 67; 3 Greenleaf’s Ev. p. 359-60. As to the conclusiveness of the deed of Wright, trustee, I have not investigated that question.