Cope, J. concurring.

This was a suit for the recovery of a mining claim.

The plaintiffs stated in the complaint their title, its origin and deraignment; and upon the title, thus set out, claimed a recovery. The answer denied the title thus* set up. Upon the trial the plaintiffs proved, as they claim, a title accruing to them in a particular way, subsequent in origin and different in the mode of acquisition from that counted on in the complaint. Perhaps it was not necessary for the plaintiffs to set out the particular facts constituting then' title in this action; but having done this, it would seem they should be held to prove it as averred, at least in substance; and that they cannot, against the defendants’ objection, recover on another and a different title.

The defendants made an affidavit, on motion for a new trial, on the ground of surprise, arising from the frame of the pleadings, and averring that they could have introduced testimony rebutting the plaintiffs’ case but for this surprise.

We think, under the circumstances, a new trial should have been granted.

Judgment reversed.