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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 Determined in the Courts of Appeal of the State ..., Volume 57

Law reports, digests, etc - 1923
...see in what manner defendant has suffered prejudice from any defect therein. A variance is not "to be deemed material, unless it has actually misled the adverse party to his prejudice." (Code Civ. Proc., sec. 469.) "Where the variance is not material, as provided in the last section,...
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Proceedings ..., Volume 35

New York State Bar Association - Bar associations - 1912
...judgment, and providing that no variance between the allegations in a pleading and the proof shall be deemed material unless it has actually misled the adverse party to his prejudice, the law goes so far that the Supreme Court of the State has said : " The evident object of the Code...
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The Code of Civil Procedure and the Probate Code of the Territory ..., Volume 1

Guam, John A. Bohn - Civil procedure - 1970
...demurrer. 469. Variance. 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 appears that a party has been so misled, the court may order the pleading...
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Aulls' Quizzer on the New York Code of Civil Procedure, Being a Complete ...

Samuel D. Aulls - Civil procedure - 1904 - 143 pages
...185. No. T86. No. 187. A variance at common law was always fatal, while under our procedure it is not material unless it has actually misled the adverse...his prejudice in maintaining his action or defense upon the merits. Sec. 539. 188. Where the allegation to which the proof is directed is unproved in...
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Laws of the State of Indiana

Indiana - Session laws - 1881
...allegations in a variance immapleading and the proof, is to be deemed material, unless it pYr^'m"^'^. 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...
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West's Pacific Reporter

Law reports, digests, etc - 1903
...variance between the allegation In a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice In maintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved...
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Reports of Cases Determined in the Supreme Court of the State of ..., Volume 135

California. Supreme Court - Law reports, digests, etc - 1906
...reversal on that ground. "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." (Code Civ. Proc., sec. 469.) The evidence is sufficient to support the findings....
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Reports of Cases Determined in the Supreme Court of the State of ..., Volume 72

California. Supreme Court - Law reports, digests, etc - 1906
...the owner of it. Under these circumstances it is impossible to see how the variance was one which " actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." (Code Civ. Proc., sec. 469.) We think, therefore, that the position taken by appellant...
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New York Field Codes 1850-1865

New York (State). Commissioners of the Code, David Dudley Field - Law - 1998 - 3634 pages
...variance between the allegation in a pleading and the proof, is to be deemed material, unless i have rm, the court may, in its discretion, if it appear that the demurrer was interpo defence, upon the merits , Whenever it is alleged, that a party has been so misled that fact must be...
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