 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 651898Full view - About this book
 | North Carolina, Albion W. Tourgée - Civil procedure - 1878 - 484 pages
...1»8.— Material variance. , No variance between the allegations in a pleading and the proof shall be deemed material, unless it have actually misled...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... | |
 | Connecticut - Civil procedure - 1879 - 354 pages
...allegation was made without reasonable excuse, or if the adverse party was actually misled thereby to his prejudice, in maintaining his action or defense upon the merits, and this is shown to the satisfaction of the court, such amendment shall be made only upon payment of costs,... | |
 | California - Civil procedure - 1880 - 864 pages
...allegation in a pleading and the proof is to be deemed material, unless it has actually misled tbe adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the court muy order the pleadings to be amended,... | |
 | California, Nathan Newmark - Civil procedure - 1880 - 786 pages
...defect to be regarded unless it aifects substantial rights. § 469. No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled tlie adverse party to his prejudice in maintaining his action or defense upon the... | |
 | Nebraska, Guy Ashton Brown - Law - 1881 - 838 pages
...PLEADINGS, AND AMENDMENTS. SEC. 188. [Variance— When not material.]— No variance between the allegation in a pleading and the proof, is to be deemed material,...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 the satisfaction... | |
 | Idaho (Ter.) - Law - 1881 - 588 pages
...adverse party or his attorney. """' ''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 appears that a party has been so misled, the Court may order the pleading to be amended,... | |
 | New York (State) - 1881 - 1532 pages
...for. — A variance, between an allegation in a pleading and the proof, is not material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. If a party insists that he has been misled, that fact, and the particulars... | |
 | Iowa. Supreme Court - Law reports, digests, etc - 1882 - 818 pages
...variance between the allegations 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 alleged that a party has been so misled, that fact must be 'shown by proof to the satisfaction... | |
 | Law - 1882 - 692 pages
...from the jury, and in directing a nonsuit. The code provides, that 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 on the... | |
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