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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 Ohio Law Journal, Volume 2

Law - 1882
...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...in maintaining his action or defense on the merits. Whenever it is alleged that party has been so misled, that fact must be proved to the satisfaction...
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Reports of Cases in Law and Equity, Determined in the Supreme ..., Volume 55

Iowa. Supreme Court - Law reports, digests, etc - 1882
...are as follows: "Sec. 2686. 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 is alleged that a party has been so misled, that fact must be 'shown by...
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The American and English Railroad Cases: A Collection of All Cases in the ...

Lawrence Lewis, Adelbert Hamilton, John Houston Merrill, William Mark McKinney, James Manford Kerr, John Crawford Thomson - Railroad law - 1882
...page 1034, Wag. Stat, 1872. No variance between the allegation in the 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. Sec. 1, Art. supra ; Fisher v. Max, 49 Mo. 404 ; Turner v. Railroad, 51 Mo....
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Reports of the Decisions of the Court of Appeals of the State of ..., Volume 2

New York (State). Court of Appeals - Law reports, digests, etc - 1883
...variance; it declares that " no variance between the allegation in a pleading and a proof shall be deemed material unless it has actually, misled the adverse party to his prejudice iu maintaining his action or defense upon the merits." Code of Pro. 169. The plaintiffs in this...
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Colton Case: 1st-83d Day; Nov. 13,1883-Aug. 1, 1884. Testimony

Claims against decedents' estates - 1884
...the allegations in a pleading and tlie proof, is to b<deemed material, unless it has actually mislead the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that party has been so misled, the Court may order the pleadings...
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The Ohio Law Journal, Volume 5

Law - 1884
...of the Revised Statutes, " 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 when it is alleged that a party has beer so milled, that fact must be proved to...
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North Carolina Reports: Cases Argued and Determined in the ..., Volume 91

North Carolina. Supreme Court - Law reports, digests, etc - 1884
...comprehensive terms 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 upon the merits." If it is alleged that a party has been misled, that fact must be proved to the satisfaction...
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Laws of the Territory of Utah Passed by the Legislative Assembly, Volume 26

Utah - Law - 1884
...Mintake* in Pleadings, and Amendment*. and the proof is to be deemed material, unless it mareriaT'*' "" has actually misled the adverse party to 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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McClain's Annotated Statutes of the State of Iowa: Showing the ..., Volume 2

Iowa, Emlin McClain - Law - 1884 - 1450 pages
...pleading and the proof is to be deemed material, unless it lias actually mis- Rl '-•>'-•_. lead 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 shown by...
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Pleading Under the Codes: Adapted to Use in the Several States and ...

Charles Theodore Boone - Code pleading - 1885 - 581 pages
...material. — Under the Codes, no variance between the allegation in a pleading and the proof iIi to be deemed material, unless it has actually misled the...his prejudice in maintaining his action or defense upon the merits.1 To be material, the variance must be such as to mislead or surprise the adverse party.2...
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