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" 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 234
1914
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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
...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...
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The Code of Procedure of the State of New York: With Notes, an Appendix, and ...

New York (State) - Civil procedure - 1855 - 798 pages
...variances between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action • и. " One of the wisest and most beneficent parte of oar law is the statute which confers on our...
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Practice Reports in the Supreme Court and Court of Appeals, Volume 13

Nathan Howard, New York (State). Supreme Court - Civil procedure - 1857
...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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Reports of Cases in Law and Equity in the Supreme Court of the State of New York

New York (State). Supreme Court, Oliver Lorenzo Barbour - Law reports, digests, etc - 1857
...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 in maintaining his action or defense upon the merits." Immaterial variances are to be disregarded on the trial, or the court may then amend,...
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The Revised Code of the District of Columbia

District of Columbia - Law - 1857 - 699 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 defence upon the merits. Whenever it is alleged that a party has been so misled, that fact must be...
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Practice Reports in the Supreme Court and Court of Appeals, Volume 14

Nathan Howard (Jr.), New York (State). Supreme Court - Civil procedure - 1857
...the amount found by the referee, be an amendment allowable under 169 of the Code, as not having " actually misled the adverse party, to his prejudice, "in maintaining his action, or defence, upon the merits?" The only case that has been cited, bearing on this point, and derided under...
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Practice Reports in the Supreme Court and Court of Appeals, Volume 18

Nathan Howard (Jr.), New York (State). Supreme Court - Civil procedure - 1860
...here. Section 169 declares that no variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the...party to his prejudice, in maintaining his action or defence upon the merits, and governs referees as well as courts whenever questions of variance arise....
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Practice Reports in the Supreme Court and Court of Appeals, Volume 10

Nathan Howard, New York (State). Supreme Court - Civil procedure - 1860
...These sections provide that no variance between the allegations of a pleading, and the proof, shall be material, unless it has actually misled the adverse...party to his prejudice in maintaining his action or defence upon Egert agt. Wicker. the merits, which fact shall be proved to the satisfaction of tne court,...
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Reports of Cases Argued and Determined in the Supreme Court of the ..., Volume 1

George Caines - Law reports, digests, etc - 1854
...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, in maintaining his action or defence, upon the merits. Whenever it shall be alleged, that a party has been BO misled, that fact...
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Session Laws

North Dakota - Session laws - 1862
...allegation in pleadinsr twcen pleading and proof. 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. Whenever it is alleged, that a party has been so misled, that fact must be...
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