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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 Southwestern Reporter, Volume 176

Law reports, digests, etc - 1915
...section does not stop with providing that no variance between the allegation and proof shall be (loomed material, unless It has actually misled the adverse party to his prejudice, but proceeds to deal with those cases in which be has been actually so misled, by requiring him to...
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The Southern Reporter, Volume 36

Law reports, digests, etc - 1904
...allegation in a pleading and the proof shall not be deemed material, unless it shall actually mislead the adverse party, to his prejudice, in maintaining his action or defense upon the merits; and where it shall not be shown to the satisfaction of the court that the party has...
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The American Decisions: Containing All the Cases of General ..., Volume 100

Law reports, digests, etc - 1888
...168, it is declared that no variance between the allegation in the pleading and the proof shall be deemed material, unless it has actually misled the...his prejudice in maintaining his action or defense upon its merits. Now, the averment in the petition is, that the defendants, together with Tunks, Stubblefield,...
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Arkansas Reports: Cases Determined in the Supreme Court of the State of ...

Arkansas. Supreme Court - Law reports, digests, etc - 1911
...Digest it is provided that "no variance between the allegation in the 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." By section 6145 of Kirby's Digest it is provided that the court may at any time in...
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The Revised Statutues of the State of Indiana: Constitutions. Codes. Wills

Indiana - Law - 1888
...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 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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The New York Supplement

Law reports, digests, etc - 1904
...proof respecting a delivery was not material under the rule of law which now obtains. A variance is not material unless it has actually misled the adverse party to his prejudice in defending the action upon the merits ; and that the party was misled must appear and be proved to the...
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The Northwestern Reporter, Volume 43

Law reports, digests, etc - 1890
...1886, 2686, providing that "no variance between the allegations 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, " a petition alleging that plaintiff was injured by a horse driven south on Chatham street, and turned...
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A Treatise on the Wrongs Called Slander and Libel: And on the Remedy by ...

John Townshend - Libel and slander - 1890 - 848 pages
...is enacted by statute that no variance between the allegation in a pleading and the proof shall be deemed " material unless it has actually misled the adverse party to his prejudice," and where there is a variance, the court may order an amendment* The following decisions upon variance...
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Reports of Cases Argued and Determined in the Supreme Court of ..., Volume 129

Indiana. Supreme Court, Horace E. Carter, Albert Gallatin Porter, Gordon Tanner, Benjamin Harrison, Michael Crawford Kerr, James Buckley Black, Augustus Newton Martin, Francis Marion Dice, John Worth Kern, John Lewis Griffiths, Sidney Romelee Moon, Charles Frederick Remy - Law reports, digests, etc - 1891
...Variance. — When Material. — No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the...party, to his prejudice, in maintaining his action or defence upon the merits. Whenever it is alleged that a a parly has been so misled, that fact must be...
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A Digest of the Decisions of the Courts of Last Resort of the ..., Volume 3

Stewart Rapalje - Law reports, digests, etc - 1891
...upon another; bnt the variance between allegations and proof, to be fatal, must be such as to mislead the adverse party, to his prejudice, in maintaining his action or defense upon its merits. Murphy v. Wilson, 100 D. 290. 158. What are immaterial. — The provisions of New...
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