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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... "
The New York Code of Civil Procedure, in One Volume, Containing All ... - Side 106
av New York (State), Morris Cooper - 1894 - 801 sider
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Southern Quarterly Review, Volum 17

Daniel Kimball Whitaker, Milton Clapp, William Gilmore Simms, James Henley Thornwell - 1850 - 570 sider
...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...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 court against the party...
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The Western Journal, of Agriculture, Manufactures, Mechanic Arts ..., Volum 1

1848 - 718 sider
...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. Where the variance is immaterial, the court may direct the fact to be found according to the evidence,...
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Reports of Cases Argued and Determined in the Supreme Court of Tennessee ...

Tennessee. Supreme Court, West Hughes Humphreys - 1850 - 862 sider
...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 merits. Whenever it shall be alleged that a party has been so misled, and that fact shall be proved to 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 - 1851 - 410 sider
...variance between the allegation in a pleading and the proof, shall be deemed material, unless it have actually misled the adverse party, to his prejudice,...maintaining his action or defence, upon the merits. Whenever it shall be alleged, that • One of the wisest and most beneficent parts of our law is the...
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The Code of Procedure of the State of New York: As Amended by the ...

New York (State). - 1851 - 266 sider
...the allegation in a pleading Material and the proof, shall be deemed material, unless it haveK"p%J;. actually misled the adverse party, to his prejudice,...maintaining his action or defence, upon the merits. Whenever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction...
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The Law Magazine: Or, Quarterly Review of Jurisprudence, Volum 14;Volum 45

1851 - 518 sider
...variance between the allegation in a pleading and the proof, shall be deemed material, unless it have actually misled the adverse party, to his prejudice,...maintaining his action or defence, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction...
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Acts of the General Assembly of the Commonwealth of Kentucky, Passed, Volum 1

Kentucky - 1851 - 548 sider
...amendments. § 182. 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 is alledged that a party has been so misled, that fact must be...
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Acts Passed at the ... Session of the General Assembly for the Commonwealth ...

Kentucky - 1851 - 544 sider
...amendments. § 182. 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 is alledged that a party has been so misled, that fact must be...
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Practice Reports in the Supreme Court and Court of Appeals, Volum 13

Nathan Howard (Jr.) - 1857 - 630 sider
...reason that now the court are required to disregard every variance between the proof and pleadings, unless it has actually misled the adverse party to...maintaining his action or defence upon the merits. (Code, § 169.) The party alleging that he has been misled, must prove it to the satisfaction of the...
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Practice Reports in the Supreme Court and Court of Appeals, Volum 14

Nathan Howard (Jr.) - 1857 - 614 sider
...the amount found by the referee, be an amendment allowable under § 169 of the Code, as not having " actually misled the adverse party, to his prejudice,...maintaining his action, or defence, upon the merits?" The only case that has been cited, bearing on this point, and derided under the Code, is Corning agt....
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