when these statutes are a rule of property, as in cases of real estate, where the statute confers title on one holding adversely for the statutory period. Elder v. McClaskey, 17 C. C. A. 251, 37 U. S. App. 1, 199, 70 Fed. 538 and cases cited. The general rule is, the Federal courts apply the statutes of limitation as prescribed by local law, and even when the action is brought on some right given by an act of Congress, and exclusively in the jurisdiction of the Federal courts. Cheatham v. Evans, 87 C. C. A. 576, 160 Fed. 802; Campbell v. Haverhill, 155 U. S. 614–616, 39 L. ed. 281, 282, 15 Sup. Ct. Rep. 217; Brady v. Daly, 175 U. S. 158, 44 L. ed. 113, 20 Sup. Ct. Rep. 62; Gabrielson v. Waydell, 67 Fed. 343; Thompson v. German Ins. Co. 76 Fed. 893. See Campbell v. New York, 81 Fed. 183; Cockrill v. Butler, 78 Fed. 682. However, in Campbell v. Haverhill, 155 U. S. 614-616, 39 L. ed. 281, 282, 15 Sup. Ct. Rep. 217, it is said the Federal courts may refuse to enforce an unreasonable statute (p. 651). See also United States v. Banister, 70 Fed. 45. While it is said the statute of limitations is governed by lex fori, as it affects the remedy only (Bullion & E. Bank v. Hegler, 93 Fed. 894; Campbell v. Haverhill, 155 U. S. 618, 39 L. ed. 283, 15 Sup. Ct. Rep. 217; Brunswick Terminal Co. v. National Bank, 88 Fed. 610; Underwood v. Patrick, 36 C. C. A. 330, 94 Fed. 471), yet it is said in Davis v. Mills, 194 U. S. 454, 48 L. ed. 1070, 24 Sup. Ct. Rep. 692 "that where the source of the obligation is in a foreign law, the defendant is entitled to the benefit of whatever limitations the foreign law creates." This applies where the statute creating the right limits the time within which the suit shall be brought or the time after which the remedy is barred; in such cases it goes to the right created and accompanies the obligation. Brunswick Terminal Co. v. National Bank, 88 Fed. 610.

Limitations must be specially pleaded, is the universal rule, as it is simply a privilege; but the statute controls the Federal courts as to setting up as a defense. Gormley v. Bunyan, 138 U. S. 623, 34 L. ed. 106, 11 Sup. Ct. Rep. 453; Hagstoz v. Mutual L. Ins. Co. 179 Fed. 569.

However, when the statement of plaintiff's claim or cause of action shows that the defense of limitation could not be avoided, then you may meet the issue by demurrer. Davis v. Mills, 58 C. C. A. 123, 121 Fed. 703.

CHAPTER VIIL

AMENDMENT OF PLEADINGS.

By section 954, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 696, no summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter of law shall appear to it, without regard to such defect or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleading, upon such conditions as it shall in its discretion and by its rules prescribe.

Congress having thus legislated and conferred upon the Federal courts the power to allow amendments to pleadings, the power is exercised by them independently of State statutes, and they are not required to follow State practice in their construction of local statutes governing amendments of pleadings. Ex parte Fiske, 113 U. S. 721, 28 L. ed. 1120, 5 Sup. Ct. Rep. 724; Manitowoc Malting Co. v. Fuechtwanger, 169 Fed. 983; McDonald v. Nebraska, 41 C. C. A. 278, 101 Fed. 171, 177; DeVall DaCosta v. Southern P. Co. 167 Fed. 654; Mexican C. R. Co. v. Duthie, 189 U. S. 76, 47 L. ed. 715, 23 Sup. Ct. Rep. 610; Oliver v. Raymond, 108 Fed. 927; Bowden v. Burnham, 8 C. C. A. 248, 19 U. S. App. 448, 59 Fed. 752.

It is said the act invests the Federal courts with plenary power to remove by amendment all inpediments to the attainment of justice (Ibid), and is in no way limited by the conformity act (Ibid.; Kent v. Bay State Gas Co. 93 Fed. 887; Rio Grande Dam & Irrig. Co. v. United States, 215 U. S. 276, 54 L. ed. 194, 30 Sup. Ct. Rep. 97; Hardin v. Boyd, 113 U. S. 756-761, 28 L. ed. 1141, 1142, 5 Sup. Ct. Rep. 771); and applies to both

suits at law and equity (Dancel v. United Shoe Machinery Co. 120 Fed. 839).

It is entirely within their power to amend any of the pleadings in a case, before, during, and after the trial, so as to conform the pleading to the proof; and indeed every step in the case, from the process to the verdict and judgment. McDonald v. Nebraska, 41 C. C. A. 278, 101 Fed. 177, and cases cited; Bamberger v. Terry, 103 U. S. 43, 26 L. ed. 317; Bowden v. Burnham, 8 C. C. A. 248, 19 U. S. App. 448, 59 Fed. 752; McKenny v. Supreme Lodge, A. O. U. W. 104 C. C. A. 117, 180 Fed. 967. It is entirely discretionary and not reviewable, unless there is a gross abuse of discretion. Lange v. Union P. R. Co. 62 C. C. A. 48, 126 Fed. 339; United States v. Lehigh Valley R. Co. 220 U. S. 257, 55 L. ed. 458, 31 Sup. Ct. Rep. 387; Rucker v. Bolles, 67 C. C. A. 30, 133 Fed. 860 and cases cited; Loeb v. Eastman Kodak Co. 106 C. C. A. 142, 183 Fed. 705; Stillwagon v. Baltimore & O. R. Co. 86 C. C. A. 287, 159 Fed. 97, 98; Mexican C. R. Co. v. Pinkney, 149 U. S. 198, 37 L. ed. 701, 13 Sup. Ct. Rep. 859, and cases cited; Kent v. Bay State Gas Co. 93 Fed. 887.

Again, while the Federal courts, as to amendment of pleadings, have a law unto themselves, they will apply the State law if consistent with the justice of the case. See Haunum v. Jerome, 184 Fed. 179; Hall v. Louisville & N. R. Co. 157 Fed. 464466; Van Doren v. Pennsylvania R. Co. 35 C. C. A. 282, 93 Fed. 269.

Amending the Petition.

Having in view the construction of the statute relating to the amendment of pleadings as above given, it is apparent that the petition can be amended at any time before trial, or in fact at any step of the proceeding, either as to defects of form, parties, jurisdictional averments, or in the statement of the cause of action.

As to Parties.

Of course, misnomer may be corrected by amendment or you may amend by striking out parties.

Where by statute of the State the party in whom the legal interest is vested may sue, you may substitute the nominal plaintiff with the real one. McDonald v. Nebraska, 41 C. C. A. 278, 101 Fed. 171; Franklin v. Conrad-Stanford Co. 70 C. C. A. 171, 137 Fed. 737.

Again, you may change by amendment the capacity in which a party sues, as from administrator or representative suit to a personal suit. Van Doren v. Pennsylvania R. Co. 35 C. C. A. 282, 93 Fed. 260. But an amendment changing the beneficiary in the action is in effect the beginning of a new suit. Hall v. Louisville & N. R. Co. 157 Fed. 465-469, and cases cited; Land Co. v. Elkins, 22 Blatchf. 204, 20 Fed. 546.

Amending the petition relates back. St. Louis & S. F. R. Co. Loughmiller, 193 Fed. 690.

Jurisdictional Averments.

Mistakes as to jurisdictional averments may be amended at any time, even after appeal, as we shall see, as such averments are not excepted under the statute. Re Plymouth Cordage Co. 68 C. C. A. 434, 135 Fed. 1003; Carnegie v. Hulbert, 16 C. C. A. 498, 36 U. S. App. 81, 70 Fed. 210; Whalen v. Gordon, 37 C. C. A. 70, 95 Fed. 305; Goodman v. Ft. Collins, 91 C. C. A. 98, 164 Fed. 972, and cases cited; First State Bank v. Haswell, 98 C. C. A. 217, 174 Fed. 211. See Simkins, Federal Equity Suit, 2d ed. p. 359, for further authorities. Thompson v. Automatic Fire Protection Co. 151 Fed. 945, amending as to amount. See also Atchison, T. & S. F. R. Co. v. Gilliland, 193 Fed. 608; Mexican C. R. Co. v. Duthie, 189 U. S. 76, 47 L. ed. 715, 23 Sup. Ct. Rep. 610.

Amending the Cause of Action.

The right to amend the statement of your cause of action so as to expand it, or correct errors of statement, is unquestionably the general rule, either under Federal or State practice. As said, the Federal courts have plenary powers under section 954 of U. S. Rev. Stat. to remove by amendment all impediments to the attainment of justice in the particular case. McDonald v.

Nebraska, 41 C. C. A. 278, 101 Fed. 171; Rio Grande Dam & Irrig. Co. v. United States, 215 U. S. 275, 54 L. ed. 194, 30 Sup. Ct. Rep. 97; Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Rep. 771; Kent v. Bay State Gas Co. 93 Fed. 889.

There are, however, recognized exceptions to the general rule. For example, the right to recover on any cause of action depends on its existence at the inception of the suit, for the nonexistence of a cause of action then cannot be cured by amendment pending the suit. American Bonding & T. Co. v. Gibson County, 76 C. C. A. 155, 145 Fed. 874, 7 Ann. Cas. 522, and cases cited. See same case, 62 C. C. A. 397, 127 Fed. 671.

Again, you cannot repudiate a special contract upon which suit was brought, by adding by amendment a new and distinct cause of action inconsistent with the first. Thus, you cannot change by amendment a suit on contract for one in tort. Inman & Co. v. Seaboard Air Line Co. 159 Fed. 965; Oliver v. Raymond, 108 Fed. 927; Metropolitan Nat. Bank v. St. Louis Dispatch Co. 38 Fed. 58.

You may, however, set up by amendment an additional cause of action of the same nature and arising out of the same course of transactions as in the original complaint. Oliver v. Raymond, 108 Fed. 927; Rio Grande Dam & Irrig. Co. v. United States, 215 U. S. 275, 54 L. ed. 193, 30 Sup. Ct. Rep. 97.

While you may expand, you cannot change, the original cause of action by amendment, which in effect makes a new and different suit. The Ask, 156 Fed. 678-681; Savage v. Worsham, 104 Fed. 19; Oliver v. Raymond, 108 Fed. 928; Land Co. v. Elkins, 22 Blatchf. 204, 20 Fed. 545; Maynard v. Green, 30 Fed. 644; Judson v. Courier Co. 25 Fed. 705.

Amending the Petition to Conform to the Proof.

It is within the discretion of the Federal courts to amend the complaint during the trial to conform to the evidence, where the facts alleged and the relief prayed for are the same (Hoogendorn v. Daniel, 102 C. C. A. 213, 178 Fed. 765); and whether the State law or practice permits or forbids it (Manitowoc Malting Co. v. Fuechtwanger, 169 Fed. 987, 988, and cases cited. Van