 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 2321914Full view - About this book
 | Law reports, digests, etc - 1915 - 1322 pages
...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... | |
 | Law reports, digests, etc - 1904 - 1076 pages
...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... | |
 | Law reports, digests, etc - 1888 - 864 pages
...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,... | |
 | Arkansas. Supreme Court - Law reports, digests, etc - 1911 - 680 pages
...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... | |
 | Indiana - Law - 1888 - 1024 pages
...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... | |
 | Law reports, digests, etc - 1904 - 1278 pages
...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... | |
 | Law reports, digests, etc - 1890 - 1280 pages
...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... | |
 | John Townshend - Libel and slander - 1890 - 972 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... | |
 | 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 - 676 pages
...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... | |
 | Stewart Rapalje - Law reports, digests, etc - 1891 - 1262 pages
...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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