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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 North Carolina: With Notes and Decisions to ...

North Carolina, Walter Clark - Civil procedure - 1892 - 817 pages
...Material variance. CCP, s. 128. 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. Whenever it shall be alleged that a party has been so misled, that fact shall be proved...
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The American State Reports: Containing the Cases of General Value ..., Volume 26

Abraham Clark Freeman - Law reports, digests, etc - 1892
...variance between the allegation in a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it shall he alleged that a party has been so misled, that tact shall he proved...
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Cases and Other Materials on Judicial Remedies: From the Forms of Actions ...

Austin Wakeman Scott, Sidney Post Simpson - Civil procedure - 1946 - 956 pages
...proof. A variance between an allegation in a pleading and the proof is not material, unless it lias actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Where the variance is not material, the court may direct the fact to be found according...
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Reports of Cases Decided in the Supreme Court of the State of ..., Volume 26

North Dakota. Supreme Court, Hiram A. Libby, Robert Milligan Carothers, Robert Dimon Hoskins, Edgar Whittlesey Camp, John McDowell Cochrane, Ames Francis Wilbur, Joseph Coghlan, Edwin James Taylor - Court rules - 1914
...allowing amendments, and that a variance between the allegations in a pleading and the proof shall not be deemed material unless it has actually misled the adverse party to his prejudice, etc. The fact that a party has not been misled to his prejudice, nor in any manner taken by surprise,...
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The Oklahoma Law Journal, Volume 3

Law - 1904
...variance between the allegation in a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action for defense upon the merits." Section 4949, 2 Ballinger's Ann. Codes & St. There is no claim, and none...
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The Oklahoma Law Journal, Volume 3

Law - 1904
...variance between the allegation in a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action for defense upon the merits." Section 4949, 2 Ballinger's Ann. Codes & St. There is no claim, and none...
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Reports of Cases Determined in the Courts of Appeal of the State ..., Volume 1

Law reports, digests, etc - 1906
...Civil Procedure provides that "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," and the next section provides that "Where the variance is not material, as provided...
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Cases Argued and Decided in the Supreme Court of Mississippi ..., Volume 72

Mississippi. Supreme Court - Law reports, digests, etc - 1896
...between the allegation in a pleading and the proof shall not be deemed material, unless it shall have actually misled 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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Reports of Cases Determined in the Courts of Appeal of the State ..., Volume 7

Law reports, digests, etc - 1909
...order an immediate amendment. (Code Civ. Proc., sec. 470.) A variance is material only when it has misled the adverse party to his prejudice in maintaining his action or defense on its merits (sec. 469), and becomes a failure of proof when the allegations are not proved in their...
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Officers and Members: Report of Proceedings of the Annual Meeting, Volume 4

Vermont Bar Association - Bar associations - 1895
...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 defence upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall...
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