dissenting:
The only cause of action set forth m the complaint is in assumpsit, for money paid for the use of the defendant. No evidence was introduced tending to sustain this cause of action, but the plaintiff recovered judgment for the damages which, upon the proof, it appeared to have sustained by reason of defendant’s failure to keep a water-ditch in repair. The statute provides that if the defendant has answered, the court may grant any relief consistent with the case made by the complaint, and embraced within the issue. But the right upon which the plaintiff recovered is distinct from that averred in the complaint, and is not embraced within the issue. “ For no facts are properly in issue unless charged in the bill, and of course no proof can be generally offered of facts not in the bill; nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, for the court pronounces its decree semmdum allegata et probata.”- (Story’s Eq. Pl. sec. 257; Carpentier v. Brenham, 50 Cal. 549.)
I cannot adopt the suggestion that the words “to defendant’s use,” and “ the defendant promised to pay the same,” be treated as surplusage, because they are material to the cause of action pleaded. For these reasons I dissent from the judgment. •