
    Wright v. Johnson et al., Ex’rs.
    Variance and Amendment.—To an action' upon a promissory note, the defendant answered that he was a resident of the District of Columbia, and by the law of that district the action was barred by the statute of limitations, setting out the statute. On the trial, the statute offered in evidence was a statute of the State of Maryland, adopted by an act of Congress, and made applicable to that part of the District of Columbia where the defendant resided. The court excluded the evidence on the ground of variance. The defendant then asked leave to amend so as to avoid the variance.
    
      Meld, that there was no material variance.
    
      Meld, also, that the defendant should have been allowed to amend.
    From the Cass Circuit Court.
    
      D. P. Baldwin, for appellant.
   Downey, J.

Suit by tbe appellees, as executors, upon a promissory note, alleged to be lost, executed by the defendant to tbe plaintiffs’ testator.

Answer: 1. A general denial; 2. Payment; 3. “He says be is now, and has been for ten years, a resident of tbe District of Columbia, in tbe United States-; tbat ever since bis residence and now there is in force a law of said district regarding tbe limitation of actions, wbicb -reads as follows : ‘Actions shall be brought within tbe following times from tbe date of tbe accruing of tbe cause thereof: upon all a'ccounts within one year; upon all bonds and instruments under seal, within five years from tbe maturity thereof; upon all promissory notes and instruments not under seal, within three years from tbe maturity thereof, and not afterward;’ and defendant says tbe action is fully barred by tbe law of tbe district in wbicb be is a resident, and therefore fully barred here and elsewhere; wherefore/’ etc.

Eeply in denial of tbe second and third paragraphs of tbe answer.

Trial by tbe court, and finding for tbe plaintiffs. Motion, for a new trial overruled, and judgment.

Tbe errors assigned are:

1. Overruling tbe motion for a new trial; and,

2. Eefusing to allow tbe defendant, on tbe trial, to amend tbe third paragraph of bis answer, to avoid a variance between it and tbe statute of limitations offered in evidence.

Tbe point relating to the refusal to allow tbe amendment to tbe third paragraph of the answer is a ground of tbe motion for a new trial, and is therefore properly embraced in tbe first assignment of error. • This is tbe only question discussed in the case. On the trial, the defendant offered in evidence tbe statute of limitations of Maryland, and in connection with it an act of Congress adopting tbe statute of limitations of Maryland for tbat part of tbe district ceded by Maryland, and also proved tbat bis residence bad been in-that part of tbe district.

Objection was made by tbe plaintiffs to the introduction of the statute of Maryland, on the ground of variance, and the objection was sustained.

The defendant then asked leave to amend the third paragraph of his answer so as to avoid the variance, which was refused by the court.

The period of limitation in the Maryland act of limitations corresponded with that stated in the third paragraph of the answer of the defendant.

It seems to us that after the law of limitation of actions of Maryland was expressly adopted by act of Congress, and made applicable to, <?r continued in force in, that part of the District of Columbia ceded by Maryland, there was no material variance in describing it as in the third paragraph of the answer. It was, in effect, the law of that part of the district when thus adopted. The amendment should have been allowed. 3 Ind. Stat. 373.

The judgmentis reversed, with costs, and the cause remanded, with instructions to grant a new trial.

Biddle, J.,. was absent.  