 | New York (State), Charles David Rust - 1889 - 864 pages
...adverse party, to lus prejudice, in maintaining his action or defence, upon the merits. If a parly insists that he has been misled, that fact, and the...the court may, in its discretion, order the pleading tu be amended, upon buch terms as it deems just. § 540. Where the variance is not material, as prescribed... | |
 | New York (State) - 1890 - 1656 pages
...between an allegation in a pleading and the proof, is not material, unless it has actually misled th« adverse party, to his prejudice, in maintaining his...in which he has been misled, must be proved to the satis faction of the court. Thereupon the court may, in its discretion, order the pleading to be amended,... | |
 | 1890 - 1280 pages
...2686, providing that "no 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 in maintaining his action or defense on the merits, " a petition alleging that plaintiff was injured by a horse driven south on... | |
 | Indiana. Supreme Court, Horace E. Carter, Albert Gallatin Porter, Gordon Tanner, Benjamin Harrison, Michael Crawford Kerr, James Buckley Black, Augustus Newton Martin, Francis Marion Dice, John Worth Kern, John Lewis Griffiths, Sidney Romelee Moon, Charles Frederick Remy - 1891 - 676 pages
...When Material. — No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the adverse...maintaining his action or defence upon the merits. Whenever it is alleged that a a parly has been so misled, that fact must be proved to the satisfaction... | |
 | New York (State) - 1891 - 1554 pages
...between an allegation in a pleading and th« proof, is not material, unless it has actually misled tha adverse party, to his prejudice, in maintaining his...defence, upon the merits. If a party insists that lie has been misled, that fact, and the particulars in which he has been misled, must be proved to... | |
 | Frank Sumner Rice - 1892 - 832 pages
...twoclasses, — material and immaterial variance. A variance between an allegation in a pleading and the proof is not material unless it has actually misled...party to his prejudice, in maintaining his action or defense upon the merits. See N". Y. Code Civ. Proc. § 539; Cal. Code Civ. Proc. § 469 et seq.; Rice's... | |
 | North Carolina, Walter Clark - 1892 - 950 pages
...variance. CCP, s. 128. No variance between the allegation in a pleading and the proof shall be deemed material unless it has actually misled the adverse...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... | |
 | 1892 - 1092 pages
...material variance, under Code Civil 1'roc. $ 539, providing that a variance between a pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice. 4. SAME— LACHES. The fact that plaintiff was negligent in failing to discover the error before signing... | |
 | Missouri. Courts of Appeals - 1893 - 768 pages
...allegation in the petition and the pr.oof . The statute is that no variance of this kind shall be deemed material unless it has actually misled the adverse...party to his prejudice in maintaining his action or defense upon the merits ; when it shall be alleged that a party has been so misled, that fact shall... | |
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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... 
