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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 111
1895
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Southern Quarterly Review, Volume 17

Daniel Kimball Whitaker, Milton Clapp, William Gilmore Simms, James Henley Thornwell - 1850 - 570 pages
...simple and useful rules. 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...
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First[-Fourth] Report of the Commissioners on Practice and Pleadings ...

New York (State). Commissioners on Practice and Pleadings - 1848 - 904 pages
...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 the merits. Whenever it shall be alleged, that a party has been so misled,...
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The Western Journal, of Agriculture, Manufactures, Mechanic Arts ..., Volume 1

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...
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The Code of Civil Procedure of the State of New York: Reported ..., Volume 2

New York (State). - 1850 - 920 pages
...and reply. § 666. 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...
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The Code of Civil Procedure of the State of New-York

New York (State). Commissioners on Practice and Pleadings - 1850 - 898 pages
...No variance between the allegation in a plead ing and the proof, is to be deemed material, unless i have actually misled the adverse party, to his prejudice in maintaining his action or defence, ujon the merits. Whenever it is alleged, that a party has been so misled that fact must be...
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Reports of Cases Argued and Determined in the Supreme Court of Tennessee ...

Tennessee. Supreme Court, West Hughes Humphreys - 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...
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Acts Passed at the ... Session of the General Assembly for the Commonwealth ...

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,...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 of the court,...
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Acts of the General Assembly of the Commonwealth of Kentucky, Passed, Volume 1

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,...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 of the court,...
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The Code of Procedure, as Amended July 10, 1851: With Copious Notes to Each ...

New York (State), Member of the New-York Bar - 1851 - 410 pages
...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 the merits. Whenever it shall be alleged, that • One of the wisest and most beneficent...
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The Law Magazine: Or, Quarterly Review of Jurisprudence, Volume 14; Volume 45

1851 - 518 pages
...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 the merits. Whenever it shall be alleged that a party has been so misled, that fact shall...
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