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" 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. "
Reports of Cases Decided in the Supreme Court of the State of South Dakota - Page 371
by South Dakota. Supreme Court - 1902
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Southern Quarterly Review, Volume 17

Daniel Kimball Whitaker, Milton Clapp, William Gilmore Simms, James Henley Thornwell - 1850 - 570 pages
...many 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...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 - Civil procedure - 1848 - 904 pages
...means of amendment of the most liberal character; as liberal, indeed, -as we could devise. § 145. No variance between the allegation in a pleading and...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

Missouri - 1848 - 718 pages
...been passed by in silence, but the code has, on these subjects, prescribed wise and plain rules. 'No variance 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....
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The Code of Civil Procedure of the State of New York: Reported ..., Volume 2

New York (State). - Civil procedure - 1850 - 920 pages
...complaint, answer and reply. § 666. No variance between the allegation in a pleading and the proof, is to be deemed material, unless it have actually misled...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 - Civil procedure - 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 - Law reports, digests, etc - 1850 - 862 pages
...the action. Let the judgment be reversed, and the cause remanded. NOTE.— "No 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...
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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 - Civil procedure - 1851 - 410 pages
...Supplemental complaint, answer and reply. $ 169. [145.] Material variances, how provided for. — No variance between the allegation in a pleading and...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

Law - 1851 - 518 pages
...the action, and not require different places of trial, and must be separately stated. " S. 169. No variance between the allegation in a pleading and...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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Reports of Cases Argued and Determined in the Supreme Court of the ..., Volume 1

California. Supreme Court - Law reports, digests, etc - 1851 - 672 pages
...variance between the complaint and proof fatal ? The 64th sec. of the Practice Act provides that no variance between the allegation in a pleading and...adverse party to his prejudice in maintaining his defense on the merits, and if so proved, the pleadings may be amended on such terms as shall be just....
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Acts of the General Assembly of the Commonwealth of Kentucky, Passed, Volume 1

Kentucky - Law - 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,...his 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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