2 Neale v. King, 12 East, 454; Cooper v. Whitehouse, 6 Car. & P. 545; Max v. Roberts, 12 East, 94; Whiting v. Cook, 8 Allen, 63, 3 Lambkin v. Chisom. 10 Ohio St. 450: Hempy v. Ransom, 33 Ohio St. 315; Truesdell v. Rhodes, 26 Wis. 219; Allnut v. Leper, 48 Mo. 319 Stanwix Bank v. Leggett, 51 N Y 552; Coakley v. Chamberlain, 8 Abb. Pr. N. S. 37; Brown v. Woods, 48 Mo. 330; Richardson v. Jones, 58 Ind. 240; Rutenberg v. Main. 47 Cal. 213. 4 McIntosh v. Ensign, 28 N. Y 172; Brugman v. McGuire, 32 Ark. 733; Witherhead v. Allen, 28 Barb. 661; Zink v. Attenburg, 18 How. Pr. 108. 5 Gossom v. Badgett, 6 Bush, 97. 6 Stearns v. Martin, 4 Cal. 227. But see Bowden v. Winsmith, 11 S. C. 409; Waits v. McClure, 10 Bush, 763. 7 Field v. Van Cott, 15 Abb. Pr. N. S. 349; 5 Daly, 308. ? 222. Allegation of performance- Waiver. Under a complaint setting out a contract and averring its performance by the plaintiff, evidence that a performance was waived, or that the contract was altered by the acts of the parties, is not admissible. Thus a plaintiff in an action against the drawer of a bill of exchange, or the indorser of a note, cannot aver demand, protest, and due notice thereof, and then recover upon proof of facts amounting to a waiver of these, as a subsequent promise to pay by the drawer or indorser after full knowledge of the facts. So in an action against an indorser, under an allegation that the plaintiff used due diligence in the prosecution of a suit against the maker, evidence that such suit would have been unavailing because of the insolvency of the maker, is not admissible. But the general rule that evidence in excuse for non-performance, under an averment of performance is not admissible, is said to be of little consequence, since the party may amend his pleading and then give the evidence. If a waiver is relied upon as a defense it must be specially pleaded.5 So an estoppel must be specially pleaded to authorize evidence to establish it; 6 therefore, in an action declaring on a written contract, it was held that evidence of facts showing an estoppel to deny such contract amounted to a failure of proof." But in an action for the conversion of a chattel, it seems that facts showing an estoppel of the plaintiff to claim title may be given in evidence on the question of title, without being specially pleaded.8 1 Fauble v. Davis, 49 Iowa, 462; O'Leary ". Board of Education, 9 Daly, 161; Edgerly v. Farmers' Ins. Co. 43 Iowa, 587 2 Lumbert v. Palmer, 23 Iowa, 104 333. Pier v. Heinrichoffen, 52 Mo. 3 Woolsey v. Williams, 34 Iowa, 413. And see Bernhard v. Wash. Life Ins. Co. 40 Iowa, 442; Edgerly v. Farmers' Ins. Co. 43 Iowa, 587; Oakley v. Morton, 11 N. Y. 25. 4 Hosley v. Black, 28 N. Y. 438; Dauchy v. Tyler, 15 How. Pr. 399. 5 Livesey v. Omaha Hotel Co. 5 Neb. 50; Murphy v. Sherman, 25 Minn. 196. 6 Rugh v. Ottenheimer, 6 Oreg. 231. And see 67, ante. 7 Phillips v. Van Schaick, 37 Iowa, 229. 8 Rogers v. King, 66 Barb. 495. ? 223. Between proof and bill of particulars. It is the office of a bill of particulars to point out the items and particulars embraced in a claim so as to identify them.1 And it is sufficiently definite and certain if it apprises the party for whose benefit it is given, of the evidence which is to be offered, so that there can be no mistake as to the preparation to be made to resist the claim.2 A variance between the proofs and the bill will not therefore be deemed material, unless the opposite party is misled thereby.3 1 Seaman v. Low, 4 Bosw. 337. And see 125, ante. 2 Dubois v. Delaware etc. Canal Co. 12 Wend. 334; 15 Wend. 87; Smith v. Hicks, 5 Wend. 48. 3 Seaman v. Low, 4 Bosw. 337. ? 224 Between summons and complaint.-As it respects venue, a variance between the summons and the complaint is immaterial, and the county named in the complaint will control.1 But in case of a variance between the summons and complaint in respect to the names of parties, the rule is different, and the summons must be considered as controlling the complaint.2 A variance between summons and complaint, as it respects the nature of the cause of action, will be deemed material if the defendant has been, or may have been, thereby misled to his prejudice.3 But a defendant cannot be thus misled when the summons and complaint are served at the same time, and in such case, a variance between them in respect to the relief demanded will be disregarded.* 1 Hotchkiss v. Crocker, 15 How. Pr. 336; Merrill v. Grinnell, 10 How. Pr. 31. See 8, ante. 2 Allen v. Allen, 14 How. Pr. 248; Follower v. Laughlin, 12 Abb. Pr. 105. See Hoffman v. Bircher, 22 W. Va. 537. 3 See Hemson v. Decker, 29 How. Pr. 385; Brown v. Eaton, 37 How. Pr. 325; Garrison v. Carr, 34 How. Pr. 187; 3 Abb. Pr. N. S. 266. 4 Brown v. Eaton, 37 How. Pr. 325. BOONE PLEAD. -87. 236. When considered as made- Defects cured, etc. 237. Instances of allowed - Generally. 238. By whom made. 230. Exercise of discretion in allowing. 241. Terms on allowing. 242. Effect of - Waiver - Practice, etc. ? 225. In general-Liberally allowed. - Under Codes of Procedure, the most ample provisions exist for the correction of errors and mistakes in pleading: Thus, one general provision is, that the court, in furtherance of justice, and on such terms as may be proper, may amend any pleading, process, or proceeding, by correcting a mistake in the name of a party, or a mistake in any other respect, and may supply an omission in any proceeding.1 And it is further provided that the court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. The provisions of the Codes authorizing amendments were intended to protect parties when errors had occurred and mistakes had been made, and when a case comes within the scope of the provisions, and there is no bad faith nor wanton delays imputed to the party applicant, the court should permit the amendment.3 And it is now pretty much a matter of course to permit parties to amend their pleadings before trial, when the amendment will produce no delay of the trial, nor work any especial hardship to the adverse party; the terms imposed being usually the payment of the costs of the motion, and such other costs and expenses, if any, as the party will lose by reason of the desired amendment.5 The leading purpose of the Code provisions on the subject is, to prevent actions from being defeated on grounds that do not affect the merits of the controversy, whenever it can be done by amendment.6 And it is said that the largest liberality should be especially permitted in amendments on appeal from Justice's Court." 1 See N. Y. Code Civ. Proc. 723; Cal. Code Civ. Proc. 473; 2 Ohio Rev. Stats. 5114; Colo. Code Civ. Proc. 75; N. C. Code Civ. Proc. 132; S. C. Code Civ. Proc. 196; Kan. Code Civ. Proc. 139; Oreg. Čode Civ. Proc. 99; Neb. Code Civ. Proc. 144; Minn. Code Civ. Proc. 109; Holmes v. Campbell, 12 Minn. 221; Viadero v. Viadero, 7 Hun, 316. 2 Cal. Code Civ. Proc. 475; Minn. Code Civ. Proc. & 112; Ind. Code Civ. Proc. 101; Oreg. Code Civ. Proc. 104; N. Y. Code Civ. Proc. 723; Iowa Rev. Code, 2690; 2 Ohio Rev. Stats. 5115. A judgment will not be reversed upon the ground of defects in pleadings, when it is apparent upon the face of the record that the parties have had a full trial, that neither party has been prejudiced by reason of such defect, and that substantial justice has been done: Doniphan v. Street, 17 Iowa, 317. 3 Schreyer v. Mayor etc. 7 Jones & S. 277; Harrington v. Slade, 22 Barb. 161; Kirstein v. Madden, 38 Cal. 158; Stringer v. Davis, 30 Cal. 321; McMillan v. Dana, 18 Cal. 349. 4 Gilchrist v. Gilchrist, 44 How. Pr. 317; Union Nat. Bank v. Bassett, 3 Abb. Pr. N. S. 359; Bowman v. De Peyster, 2 Daly, 203. 5 Gilchrist v. Gilchrist, 44 How. Pr. 317. 6 Bullard v. Johnson, 65 N. C. 436; Robinson v. Willoughby, 67 N. C. 84; Tarrant v. Gittelson, 16 S. C. 234. 7 Newberg v. Farmer, 1 Wash. T. N. S. 182. ? 226. As of course. -Within the times specified in the different Codes, any pleading may be once amended by the party filing or serving it, as a matter of course, |