 No variance between the allegation 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.  The Pacific Reporter - Page 1951913Full view - About this book
 | Daniel Kimball Whitaker, Milton Clapp, William Gilmore Simms, James Henley Thornwell - 1850 - 570 pages
...No variance between the allegation 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 defence upon the merits. In case of a failure of proof, and a verdict of the jury, or finding of the... | |
 | New York (State). Commissioners on Practice and Pleadings - 1848 - 904 pages
...means of amendment of the most liberal character; as liberal, indeed, -as we could devise. § 145. No 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 liis action or defence, upon... | |
 | 1848 - 718 pages
...not been passed by in silence, but the code has, on these subjects, prescribed wise and plain rules. 'No variance between the allegation in a pleading and the proof, shall be deemed material, unless it have oclnally misled the adverse party to his prejudice, in maintaining his action or defence upon... | |
 | Tennessee. Supreme Court, West Hughes Humphreys - 1850 - 862 pages
...the action. Let the judgment be reversed, and the cause remanded. NOTE.— "No variance between an allegation in a pleading, and the proof shall be deemed material, unless it shall hare misled the adverse party to his prejudice in maintaining his action or defence upon the merits.... | |
 | New York (State). - 1850 - 920 pages
...No variance between the allegation 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 defence, uj on the merits. Whenever it is alleged, that a party has been so misled, that fact must... | |
 | 1851 - 520 pages
...to the action, and not require different places of trial, and must be separately stated. " S. 169. No 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... | |
 | Kentucky - 1851 - 544 pages
...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,...maintaining his action or defense upon the merits. Whenever it is alledged that a party has been so misled, that fact must be shown to the satisfaction... | |
 | California. Supreme Court - 1851 - 672 pages
...the variance between the complaint and proof fatal ? The 64th sec. of the Practice Act provides that no 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 defense on the merits, and... | |
 | Kentucky - 1851 - 548 pages
...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,...maintaining his action or defense upon the merits. Whenever it is alledged that a party has been so misled, that fact must be shown to the satisfaction... | |
 | New York (State), Member of the New-York Bar - 1851 - 410 pages
...177. Supplemental complaint, answer and reply. $ 169. [145.] Material variances, how provided for. — No 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... | |
| |
