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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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Statutes at Large of the State of New York: Comprising the Revised ..., Volume 5

New York (State) - Law - 1863
...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 defense, upon the merits. Whenever it shall be alleged, that a party has been so misled, that fact shall be...
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Law Reform

Thomas Berry Cusack Smith - Law reform - 1863 - 123 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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The Code of Procedure of the State of New York, as Amended to 1864: With ...

John Townshend - Civil procedure - 1864 - 315 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, 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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The Code of Procedure of the State of New York, as Amended to 1867: With the ...

John Townshend - Court rules - 1867 - 292 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, in maintaining his action or defence, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall...
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The Constitution of South Carolina: Adopted April 16, 1868, and the Acts and ...

South Carolina - 1868
...the allegation in a pleading and the riM1ae^rial va" 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 so misled, that fact shall...
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The Code of Procedure of the State of New York as Amended by the Legislature ...

New York (State). - Civil procedure - 1869 - 217 pages
...variance between the allegation in a pleading and the proof shall be deemed material, unless n have actually misled the adverse party, to his prejudice, in maintaining his action er defence, upon the merits Whenever it shall be alleged, that a party has been so misled, that fact...
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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
...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...
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North Carolina Reports: Cases Argued and Determined in the ..., Volume 67

North Carolina. Supreme Court - Law reports, digests, etc - 1872
...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, 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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The Code of Civil Procedure: Of the State of California

California, Creed Haymond - Civil procedure - 1872 - 768 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, 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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General Laws, Private Acts, Joint Resolutions, and Memorials: 1st-11th Sess ...

Colorado (Ter.) - Law - 1872
...variance between the allegations in O 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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