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" No variance between the allegations, in a pleading, and the proof, is to be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. "
Annual Reports of the Secretary of War - Page 444
by United States. War Department - 1901
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Acts Passed at the ... Session of the General Assembly for the Commonwealth ...

Kentucky - Session laws - 1851 - 544 pages
...amendments. § 182. No variance between the allegation in a pleading and the proof, is to be deemed material, unless it has actually misled the adverse party to...his action or defense upon the merits. Whenever it is alledged that a party has been so misled, that fact must be shown to the satisfaction of the court,...
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Acts of the General Assembly of the Commonwealth of Kentucky, Passed, Volume 1

Kentucky - Law - 1851 - 548 pages
...amendments. § 182. No variance between the allegation in a pleading and the proof, is to be deemed material, unless it has actually misled the adverse party to...his action or defense upon the merits. Whenever it is alledged that a party has been so misled, that fact must be shown to the satisfaction of the court,...
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Reports of Cases Argued and Determined in the Supreme Court of ..., Volume 3

Indiana. Supreme Court, Horace E. Carter, Albert Gallatin Porter, Gordon Tanner, Benjamin Harrison, Michael Crawford Kerr, James Buckley Black, Augustus Newton Martin, Francis Marion Dice, John Worth Kern, John Lewis Griffiths, Sidney Romelee Moon, Charles Frederick Remy - Law reports, digests, etc - 1853 - 688 pages
...between the allegations in a pleading and the proof is to be deemed material, unless it has actuallV misled the adverse party to his prejudice in maintaining his action or defense upon the merits. When it is alleged that the party has been so misled, that fact must be proved to the satisfaction...
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Reports of Cases in Law and Equity in the Supreme Court of the ..., Volume 22

Oliver Lorenzo Barbour, New York (State). Supreme Court - Law reports, digests, etc - 1857 - 722 pages
...variance between the allegations in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice...maintaining his action or defense upon the merits." Immaterial variances are to be disregarded on the trial, or the court may then amend, or whenever the...
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Practice Reports in the Supreme Court and Court of Appeals, Volume 13

Nathan Howard (Jr.) - Civil procedure - 1857 - 630 pages
...reason that now the court are required to disregard every variance between the proof and pleadings, unless it has actually misled the adverse party to his prejudice in maintaining his action or defence upon the merits. (Code, § 169.) The party alleging that he has been misled, must prove it...
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Statutes at Large of the State of New York: Comprising the Revised ..., Volume 5

New York (State) - Law - 1863 - 1026 pages
...variance between the allegation in a pleading and the proof, shall be deemed material, unless it have actually misled the adverse party, to his prejudice,...his action or defense, upon the merits. Whenever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction of...
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The Code of Procedure of the State of New York, as Amended to 1864: With ...

John Townshend - Civil procedure - 1864 - 320 pages
...variance between the allegation in a pleading am! the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice,...his action or defense, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of...
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Reports of Cases in the Supreme Court of Nebraska, Volume 62

Nebraska. Supreme Court, David Allen Campbell, Guy Ashton Brown, Lorenzo Crounse, Walter Alber Leese, Lee Herdmen, Henry Clay Lindsay, Henry Paxon Stoddart - Law reports, digests, etc - 1902 - 1050 pages
...averment of a pleading and the evidence given to sustain it is not to be deemed material unless it has misled the adverse party to his prejudice in maintaining his action or defense upon the merits. 4. Tax Lien Extinguished by Payment: EXCKPTION. The tax lien upon real estate existing in favor of...
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North Carolina Reports: Cases Argued and Determined in the ..., Volume 67

North Carolina. Supreme Court - Law reports, digests, etc - 1872 - 568 pages
...variance between the allegation in a pleading and the prool shall be deemed material, unless it have actually misled the adverse party to his prejudice,...his action (or defense) upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of...
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The Code of Civil Procedure: Of the State of California, Part 3

California, Creed Haymond, John Chilton Burch, John Hill McKune - Civil procedure - 1872 - 886 pages
...allegation Material in a pleading and the proof is to be deemed material, how pro-' unless it have actually misled the adverse party to his prejudice,...his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the Court,...
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