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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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Rust's New York Code of Civil Procedure 1885

New York (State), Charles David Rust - Civil procedure - 1885 - 645 pages
...the court deems just. 539. A variance, between an allegation in a pleading and the proof, is not material, unless it has actually misled the adverse...party, to his prejudice, in maintaining his action or defence, upon the merits. If a party insists that he has been misled, that fact, and the particulars...
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The Northeastern Reporter, Volume 34

Law reports, digests, etc - 1893
...reversal under Rev. St. 1881, 391, which declares that "no variance between pleading and proof is to be deemed material unless it has actually misled the adverse party to his prejudice." 2. An executed parol agreement for the construction of a ditch across ono man's land, to drain the...
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Reports of Cases in Law and Equity, Determined in the Supreme ..., Volume 68

Iowa. Supreme Court - Law reports, digests, etc - 1886
...rightfully disregarded it. " No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the...prejudice in maintaining his action or defense on its merits." Code, 2080. And (2) the allegation that the assault and battery was committed maliciously,...
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Supreme Court Reporter, Volume 6

United States. Supreme Court - Law reports, digests, etc - 1886
...section 539 it is provided that "a variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse...his prejudice in maintaining his action or defense upon the merits. If a party insists that he has been misled, the fact, and the particulars in which...
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United States Supreme Court Reports, Volume 29

United States. Supreme Court - Law reports, digests, etc - 1886
...the allegations in pleading and the proof shall be deemed material unless it shall actually mislead the adverse party to his prejudice in maintaining his action or defense on its merits; whenever it shall be alleged that a party has been so misled, the fact shall be proved...
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Atlantic Reporter, Volume 90

Law reports, digests, etc - 1914
...between the allegations and proof Is to be deemed material unless it is such as must have reasonably misled the adverse party to his prejudice in maintaining his action or defense. [5] The important and essential allegation of the plaintiff's bill respecting the assignment to Allen...
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The Southwestern Reporter, Volume 37

Law reports, digests, etc - 1897
...Dig. Ark. 507Г>, provides: "Novariance 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 i* alleged that a party has been so misled, that fnct must be shown to...
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Annotated Ohio Code of Civil Procedure

Ohio, William Henry Whittaker - Civil procedure - 1887 - 635 pages
...deemed material. Amendment. TSo 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 (1), and when it is alleged that a party has been so misled, that fact must be proved...
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The New York Code of Civil Procedure: As Amended To, and Including 1887 ...

Civil procedure - 1887 - 645 pages
...the court deems just. 539. A variance, between an allegation in a pleading and the proof, is not material, unless it has actually misled the adverse...party, to his prejudice, in maintaining his action or defence, upon the merits. If a party insists that he has been misled, that fact, and the particulars...
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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 - 1887
...Procedure, which enacts that no variance between the allegation in pleading and the proof shall be deemed material, unless it has actually misled the...adverse party to his prejudice in maintaining his action upon the merits." The Code, 269 and 270. We propose to examine only the last in the series of...
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