 | Daniel Kimball Whitaker, Milton Clapp, William Gilmore Simms, James Henley Thornwell - 1850 - 570 pages
...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...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 court against the party... | |
 | Missouri - 1848 - 718 pages
...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 the merits. Where the variance is immaterial, the court may direct the fact to be found according to the evidence,... | |
 | Tennessee. Supreme Court, West Hughes Humphreys - Law reports, digests, etc - 1850 - 862 pages
...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. Whenever it shall be alleged that a party has been so misled, and that fact shall be proved to the... | |
 | Law - 1851 - 520 pages
...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,...maintaining his action or defence, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction... | |
 | Kentucky - Law - 1851 - 548 pages
...amendments. § 182. 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. Whenever it is alledged that a party has been so misled, that fact must be... | |
 | New York (State). - Civil procedure - 1851 - 266 pages
...the allegation in a pleading Material and the proof, shall be deemed material, unless it haveK"p%J;. actually misled the adverse party, to his prejudice,...maintaining his action or defence, upon the merits. Whenever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction... | |
 | New York (State), Member of the New-York Bar - Civil procedure - 1851 - 410 pages
...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,...maintaining his action or defence, upon the merits. Whenever it shall be alleged, that • One of the wisest and most beneficent parts of our law is the... | |
 | Kentucky - Session laws - 1851 - 544 pages
...amendments. § 182. 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. Whenever it is alledged that a party has been so misled, that fact must be... | |
 | Nathan Howard (Jr.) - Civil procedure - 1857 - 630 pages
...reason that now the court are required to disregard every variance between the proof and pleadings, unless it has actually misled the adverse party to...maintaining his action or defence upon the merits. (Code, § 169.) The party alleging that he has been misled, must prove it to the satisfaction of the... | |
 | Nathan Howard (Jr.) - Civil procedure - 1857 - 614 pages
...the amount found by the referee, be an amendment allowable under § 169 of the Code, as not having " actually misled the adverse party, to his prejudice,...maintaining his action, or defence, upon the merits?" The only case that has been cited, bearing on this point, and derided under the Code, is Corning agt.... | |
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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. Whenever it appears that a party has been so... 
