 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 prejudice in maintaining his action or defense upon the merits.  The Pacific Reporter - Page 2321914Full view - About this book
 | William Wait - Civil procedure - 1874 - 910 pages
...Material variances. As has been stated, no variance between the allegation in a pleading and the proof is material, unless it has actually misled the adverse...his prejudice in maintaining his action or defense upon the merits. Code, ยง 169. And where a party has been misled to his prejudice by a variance between... | |
 | Ohio, George E. Seney - Civil procedure - 1874 - 896 pages
...variance between the allegation in a pleading and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to... | |
 | 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 - 1874 - 672 pages
...variance between the allegations in a pleading and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defence upon the merits." Sec. 94, 2 G. & H. 114. The court may at any time direct any material allegations... | |
 | California, Theodore Henry Hittell - Law - 1876 - 986 pages
...Variance, when material. SEC. 469. No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the...his prejudice in maintaining his action or defense upon the merits. Whenever it appeai-s that a party has been so misled, the court may order the pleading... | |
 | California - Civil procedure - 1876 - 888 pages
...party or his attorney. $ 469. No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the...his prejudice in maintaining his action or defense upon the merits. Whenever it "appears74 that a party has been so misled, t the court may order the... | |
 | Wisconsin. Supreme Court, Abram Daniel Smith, Philip Loring Spooner, Obadiah Milton Conover, Frederic King Conover, Frederick William Arthur, Frderick C. Seibold - Law reports, digests, etc - 1876 - 762 pages
...granting a nonsuit for a variance between the pleading and proof, " unless it shall actually mislead the adverse party to his prejudice in maintaining his action or defense upon the merits." BS, ch. 125, sec. 83. There was no pretense in this case that respondent had been... | |
 | Joseph Chitty, Henry Greening - Forms (Law) - 1876 - 1174 pages
...between the allegation in a pleading and the proof shall be deemed material, unless it have actunllv misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. (Sec. 170.) Where the variance is not material, the court may direct the... | |
 | Utah. Supreme Court, Albert Hagan, John Augustine Marshall, John Maxcy Zane, James A. Williams, Joseph M. Tanner, George L. Nye, John Walcott Thompson, August B. Edler, Alonzo Blair Irvine, Harmel L. Pratt, William S. Dalton, H. Arnold Rich - Law reports, digests, etc - 1890 - 716 pages
...this territory provides that "no variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the...his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading... | |
 | Utah. Supreme Court, Albert Hagan, John Augustine Marshall, John Maxcy Zane, James A. Williams, Joseph M. Tanner, George L. Nye, John Walcott Thompson, August B. Edler, Alonzo Blair Irvine, Harmel L. Pratt, William S. Dalton, H. Arnold Rich - Law reports, digests, etc - 1897 - 598 pages
...Utah 1888, provides that " no variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the...his prejudice in maintaining his action or defense upon the merits." Section 3253, Id., provides that, " where the variance is not material as provided... | |
 | Utah. Supreme Court, Albert Hagan, John Augustine Marshall, John Maxcy Zane, James A. Williams, Joseph M. Tanner, George L. Nye, John Walcott Thompson, August B. Edler, Alonzo Blair Irvine, Harmel L. Pratt, William S. Dalton, H. Arnold Rich - Law reports, digests, etc - 1901 - 614 pages
...Sec. 3001, Rev. Stat., 1898, "No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the...his prejudice in maintaining his action or defense upon the merits." Ifolinan v. Pleasant Grave, 8 Utah, 82; Cnlmer v. Clift, 14 Utah, 289; Ashton v.... | |
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