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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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The Code of Civil Procedure of the State of California: Adopted March 11th ...

California - Civil procedure - 1872 - 750 pages
...variance between the allegation in a pleading and the proc* 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 Practice at Law: In Equity, and in Special Proceedings, in All ..., Volume 2

William Wait - Civil procedure - 1873
...provision of the Code, that no variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the...his prejudice, in maintaining his action or defense upon the merits, and the subsequent provisions in relation to amendments in such cases. But the general...
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The Code of Procedure of the State of New York, as Amended to 1873: With ...

New York (State), John Townshend - Civil procedure - 1873 - 899 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 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 Argued and Determined in the Supreme Court of Ohio, Volume 36

Ohio. Supreme Court - Law reports, digests, etc - 1881
...nonsuit. The code provides, that 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 maintainIJarnett r. Ward. ing his action or defense on the merits. Whenever it is alleged that a party...
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The Revised Statutes of the State of South Carolina: Prepared by ...

South Carolina - Law - 1873 - 1063 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 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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Journal of the House of Representatives of the General Assembly of ..., Volume 2

Illinois. General Assembly. House of Representatives - Illinois - 1874
...necessary in any pleading. 27. 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. 28. If any original paper or pleading be lost, or withheld by any person, the court...
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Statutes of California and Digests of Measures

California - Session laws - 1874
...Four Hundred and Sixty-nine. 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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The Practice at Law: In Equity, and in Special Proceedings, in All ..., Volume 3

William Wait - Civil procedure - 1874
...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, 169. And where a party has been misled to his prejudice by a variance between...
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The Code of Civil Procedure of the State of Ohio: With the Subsequent ...

Ohio, George E. Seney - Civil procedure - 1874 - 872 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...
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Reports of Cases Argued and Determined in the Supreme Court of ..., Volume 42

Indiana. Supreme Court, Horace E. Carter, Albert Gallatin Porter, Gordon Tanner, Benjamin Harrison, Michael Crawford Kerr, James Buckley Black, Augustus Newton Martin, John Worth Kern, Francis Marion Dice, John Lewis Griffiths, Sidney Romelee Moon, Charles Frederick Remy - Law reports, digests, etc - 1874
...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...
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