
    Nearing vs. Bell.
    A judge has no right to reject evidence offered by the plaintiff, pertinent to the issue, merely because it is not embraced by the case stated in the opening.
    On a trial for slander, the plaintiff’s counsel opened by stating that his client had already obtained one judgment against the defendant for similar words, and that the object of the present suit was to recover damages for a repetition of them since the former trial. The first witness being asked what he had heard the defendant say of the plaintiff, the circuit judge observed that the answer must be confined to the case presented in the opening; whereupon the counsel proposed to modify his opening so as to embrace words spoken since the commencement of the first suit, but before the trial thereof, and he offered evidence accordingly. Held, that the circuit judge could not legally refuse to hear the evidence.
    Slander, tried at the Otsego circuit, in September, 1840, before Gridley, C. Judge. The action was for -words charging the plaintiff with having committed perjury in. testifying upon the trial of a cause before a justice. Plea, the general issue, with notice of justification and former recovery. The plaintiff had previously obtained- a verdict against the defendant for a like charge in relation to the same testimony; and, in opening the cause to the jury, the plaintiff’s counsel stated, among other things, that the objéct of the present action was to recover damages for a repetition of the charge since the former trial! After proving the testimony given by the plaintiff before the justice, the witness called for that purpose was asked what he had heard the. defendant say in respect to the plaintiff’s having committed perjury, &c. The-circuit- judge-thereupon remarked that, as he understood the opening of the plaintiff’s counsel, it was confined to words spoken since the former trial, and the witness could not therefore be allowed to speak of other words. The plaintiff’s counsel replied that he must have been misunderstood by the judge, but, in order to correct all misapprehension upon the point, proposed to explain or modify his opening so as to include any words spoken- since the commencement of the former suit, but before the trial thereof, provided they came within ■ the pres-' ent declarationand he accordingly offered evidence of such words. The circúit judge refused to allow a modification of the opening, and rejected the evidence offered. The trial progressed, but the plaintiff failed to establish his case under the limitation prescribed by the judge, and a nonsuit was therefore ordered. The plaintiff now moved for a new trial on.a case.
    
      N. Hill, Jun., for the plaintiff,
    insisted that the evidence offered should have, been received. It was pertinent to the issue, and .the case did not fall within the principle which allows a discretion to be exercised in the admission or rejection of evidence. .
    
      J -A. Spencer, -for the defendant,
    contended that the circuit judge had a right, in his discretion, to confine the evidence to the case stated in thé opening; and that this court would not interfere under such circumstances. He cited and commented on Ford v. Niles, (1 Hill, 300,) Shepard v. Potter, (4 id. 202,) and Morris v. Wadsworth, (17 Wend. 103.)
   Per Curiam.

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.  