Opinion by
Mr. Chief Justice Simpson,*606Action on note stated in the complaint and admitted in the answer. The defense was, that the note was a mere memorandum given under a certain agreement, and testi*607mony was introduced to prove this agreement. This was held error on a preyious appeal in this case, reported 13 8. G. 328. At the second trial, without any amendment of the pleadings, defendant offered to prove that the account for which the note was given contained overcharges, and that there was nothing clue thereon when this note was given. The presiding judge (Aldrich) ruled that this testimony was incompetent. Held, that this ruling was correct, the testimony offered not being pertinent to any issue raised in the pleadings.