 No variance between the allegations, in а 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 1771915Full view - About this book
 | Idaho (Ter.) - Law - 1881 - 588 pages
...variance. SBC. 263. N"o variance between the allegation in a upon the adverse party or his attorney. """' ''pleading and the proof is to be deemed material,...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, upon such... | |
 | New York (State) - 1881 - 1532 pages
...variances ; how provided 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
...touching the questions raised are as follows: "Sec. 2686. No variance between the allegations in a pleading and the proof is to be deemed material unless...that a party has been so misled, that fact must be 'shown by proof to the satisfaction of the court, and such proof must also show in what respect he... | |
 | Law - 1882 - 692 pages
...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...his prejudice, in maintaining his action or defense on the merits. Whenever it is alleged that à party has been so misled, that fact must be proved to... | |
 | Lawrence Lewis, Adelbert Hamilton, John Houston Merrill, William Mark McKinney, James Manford Kerr, John Crawford Thomson - Railroad law - 1882 - 706 pages
...page 1034, Wag. Stat, 1872. No variance between the allegation in the pleading and the proof shall be deemed material unless it has actually misled the...party to his prejudice in maintaining his action or defence upon the merits. Sec. 1, Art. supra ; Fisher v. Max, 49 Mo. 404 ; Turner v. Railroad, 51 Mo.... | |
 | Claims against decedents' estates - 1884 - 752 pages
...the allegations in a pleading and tlie proof, is to b<deemed material, unless it has actually mislead the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that party has been so misled, the Court may order the pleadings to be amended upon such terms... | |
 | New York (State). Court of Appeals - Law reports, digests, etc - 1883 - 650 pages
...of variance; it declares that " no variance between the allegation in a pleading and a proof shall be deemed material unless it has actually, misled the adverse party to his prejudice iu maintaining his action or defense upon the merits." Code of Pro. § 169. The plaintiffs in this... | |
 | Iowa, Emlin McClain - Law - 1884 - 940 pages
...pleading and the proof is to be deemed material, unless it lias actually mis- Rl '-•>'-•_. lead the adverse party to his prejudice in maintaining...that a party has been so misled, that fact must be shown by proof to the satisfaction of the court, and such proof must also show in what respect he has... | |
 | Law - 1884 - 1022 pages
...5294 of the Revised Statutes, " No variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled...maintaining his action or defense upon the merits, and when it is alleged that a party has beer so milled, that fact must be proved to the satisfaction... | |
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