 | North Carolina. Supreme Court - 1884 - 738 páginas
...terms that, " 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." If it is alleged that a party has been misled, that fact must be proved to the satisfaction... | |
 | 1914 - 1244 páginas
...justified under Code Civ. Proc. §§ 469, 470, declaring that no variance shall be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his defense upon the merits, and providing that where the variance is not material, the court may order... | |
 | 1902 - 1172 páginas
...variance between the allegations 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 on the merits." Civ. Code, § 133. A departure from the pleadings in those mere incidents of evidence... | |
 | Charles Theodore Boone - 1885 - 598 páginas
...the Codes, no variance between the allegation in a pleading and the proof iIi to be deemed material, unless it has actually misled the adverse party to...prejudice in maintaining his action or defense upon the merits.1 To be material, the variance must be such as to mislead or surprise the adverse party.2 And... | |
 | New York (State), Charles David Rust - 1885 - 814 páginas
...deems just. § 539. 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... | |
 | United States. Supreme Court - 1886 - 1238 páginas
...it is provided that "a variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse party to...maintaining his action or defense upon the merits. If a party insists that he has been misled, the fact, and the particulars in which he has been misled,... | |
 | Iowa. Supreme Court - 1886 - 872 páginas
...disregarded it. " 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 its merits." Code, § 2080. And (2) the allegation that the assault and battery was committed maliciously,... | |
 | 1897 - 1218 páginas
...provides: "Novariance between the allegation In a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to...his action or defense upon the merits. Whenever it i* alleged that a party has been so misled, that fnct must be shown to the satisfaction of the court,... | |
 | Ohio, William Henry Whittaker - 1887 - 688 páginas
...Amendment. TSo variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party, to...maintaining his action or defense upon the merits (1), and when it is alleged that a party has been so misled, that fact must be proved to the satisfaction... | |
 | 1887 - 956 páginas
...was the owner of it. Under these circumstances it is impossible to see how the variance was one which "actually misled the adverse party to his prejudice...maintaining his action or defense upon the merits." Code Ci vil Proc. § 469. We think, therefore, that the position taken by appellant on this branch... | |
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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 upon the merits. 
