 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 Northwestern Reporter - Page 1721900Full view - About this book
 | William Wait - Civil procedure - 1873 - 950 pages
...title, etc., have lost much of their former force and strictness, since the provision of the Code, 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 or defense upon the... | |
 | California - Session laws - 1874 - 524 pages
...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 misled, the Court may order the pleading to be amended, upon such... | |
 | Ohio, George E. Seney - Civil procedure - 1874 - 896 pages
...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. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court,... | |
 | Illinois. General Assembly. House of Representatives - Illinois - 1874 - 716 pages
...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. § 28. If any original paper or pleading be lost, or withheld by any person, the court may order a... | |
 | 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 - Law reports, digests, etc - 1874 - 672 pages
...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 defence upon the merits." Sec. 94, 2 G. & H. 114. The court may at any time direct any material allegations... | |
 | Oregon. Supreme Court, William Wallace Thayer, Joseph Gardner Wilson, Thomas Benton Odeneal, Julius Augustus Stratton, William Henry Holmes, Reuben S. Strahan, George Henry Burnett, Robert Graves Morrow, James W. Crawford, Frank A. Turner, Bellinger, Charles Byron - Law reports, digests, etc - 1876 - 620 pages
...whether the court erred in permitting the amendment. Sec. 94 of the Code of Civil Procedure enacts that, "No variance between the allegation in a pleading...shall be deemed material, unless it have actually misled the adverse party to his prejudice." Upon the filing of the replication the defendant was informed... | |
 | John Norton Pomeroy - Actions and defenses - 1876 - 924 pages
...(0, tion shall be made in any pleading which the pleading ; § 2648, subd. 6. Seetupra, of them : " No variance between the allegation in a pleading and...shall be deemed material, unless it have actually misled [shall actually mislead] the adverse party to his prejudice in maintaining his action or defence... | |
 | California, Theodore Henry Hittell - Law - 1876 - 986 pages
...between the allegation in a pleading and the proof is to be deemed material, unless it has actually the indictment is triable, after it is found. 14.383....Court may order action continued and discharge defen appeai-s that a party has been so misled, the court may order the pleading to be amended, upon such... | |
 | New York (State). - Civil procedure - 1876 - 498 pages
...deuial or avoidance, as the case may require. CHAPTER VI. Mistake* in Pleading, and Amendments. 5 160. No variance between the allegation in a pleading and...the proof shall be deemed material, unless it have actnally misled the adverse party, to his prejndice, in maintaiuing his action or delense, upon the... | |
 | California - Civil procedure - 1876 - 888 pages
...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 "appears74 that a party has been so misled, t the court may order the pleading to be amended, upon... | |
| |
