 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.  The Codes and General Laws of Oregon - Page 236by Oregon - 1892 - 2192 pagesFull view - About this book
 | 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... | |
 | 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,... | |
 | New York (State). Legislature - Law - 1848 - 672 pages
...tually misled the adverse party, to his prejudice, in maintain- vided foring his action or defence, upon the merits Whenever it shall be alleged, that...misled, that fact shall be proved to the satisfaction of the court, by affidavit, shewing in what respect he has been misled ; and, thereupon, the court may... | |
 | Missouri - 1848 - 718 pages
...not 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...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.... | |
 | 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... | |
 | Tennessee. Supreme Court, West Hughes Humphreys - Law reports, digests, etc - 1850 - 862 pages
...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 shall be proved to the satisfaction of the court, and in what respect he has been misled,... | |
 | 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... | |
 | Law - 1851 - 520 pages
...to 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... | |
 | New York (State), Member of the New-York Bar - Civil procedure - 1851 - 410 pages
...177. 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... | |
 | California. Supreme Court - Law reports, digests, etc - 1851 - 672 pages
...the 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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