 | 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 - 1853 - 688 pages
...between the allegations in a pleading and the proof is to be deemed material, unless it has actuallV misled the adverse party to his prejudice in maintaining his action or defense upon the merits. When it is alleged that the party has been so misled, that fact must be proved to the satisfaction... | |
 | New York (State) - 1855 - 802 pages
...variances between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action • и. " One of the wisest and most beneficent parte of oar law is the statute which confers on our... | |
 | Oliver Lorenzo Barbour, New York (State). Supreme Court - 1856 - 724 pages
...allegation in a pleading and the proof, shall be material, unless it shall have actually misled the party, to his prejudice, in maintaining his action or defense upon the merits." There was no allegation, on th» trial, that the defendants were misled. Indeed they could not have... | |
 | Oliver Lorenzo Barbour, New York (State). Supreme Court - 1857 - 722 pages
...variance between the allegations 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 defense upon the merits." Immaterial variances are to be disregarded on the trial, or the court may then amend, or whenever the... | |
 | Nathan Howard (Jr.) - 1857 - 630 pages
...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 his prejudice in maintaining his action or defence upon the merits. (Code, § 169.) The party alleging that he has been misled, must prove it... | |
 | Nathan Howard (Jr.) - 1857 - 614 pages
...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, "in maintaining his action, or defence, upon the merits?" The only case that has been cited, bearing on this point, and derided under... | |
 | District of Columbia - 1857 - 788 pages
...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 defence upon the merits. Whenever it is alleged that a party has been so misled, that fact must be... | |
 | Nathan Howard (Jr.) - 1860 - 620 pages
...Code. Sections 1G9 to 173, inclusive, are more particularly applicable here. Section 169 declares that no variance between the allegation in a pleading and...party to his prejudice, in maintaining his action or defence upon the merits, and governs referees as well as courts whenever questions of variance arise.... | |
 | Nathan Howard (Jr.) - 1860 - 616 pages
...These sections provide that no variance between the allegations of a pleading, and the proof, shall be material, unless it has actually misled the adverse...party to his prejudice in maintaining his action or defence upon Egert agt. Wicker. the merits, which fact shall be proved to the satisfaction of tne court,... | |
 | George Caines - 1854 - 764 pages
...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, in maintaining his action or defence, upon the merits. Whenever it shall be alleged, that a party has been BO misled, that fact... | |
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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. 
