
    SANTIAGO v. AMANGUAL.
    San Juan,
    Law,
    No. 1024.
    On Motion to Amend Answer.
    Amendment — Federal Court.
    1. Revised Statutes, § 954, confers upon the Federal court discretion to allow amendments to pleadings upon such terms as it may think proper. The Federal court has this power independently of local legislation.
    Limitations — Waiver.
    2. Under the American system and under the procedure in Porto Rico the statute of limitations is considered a personal defense which must be pleaded, or it is to be considered waived.
    
      Amendment — Up to Trial.
    3. An amendment of pleadings, whether relating to statute of limitations or otherwise, may he had at any time up .to trial, and in some instances at the trial in order to meet evidence, and upon such terms as the court may fix in order to protect the opposite parties.
    Opinion filed November 17, 1914.
    
      Mr. R. E. Francis for defendant for tbe motion.
    
      Mr. R. G. Molina for plaintiff, opposed.
   HaMxltoN, Jndge,

delivered tbe following opinion:

This is a motion made by tbe defendant two days before tbe ease is set for trial, and asking leave to amend bis answer by setting np tbe prescriptions of ten and thirty years. Tbe motion, wbicb is sworn to, alleges tbat tbe facts showing these defenses have come to tbe knowledge of tbe defendant within tbe past twenty-four hours, and in effect could not have been learned before with reasonable diligence. Tbe motion is opposed on the ground that prescription is analogous to tbe statute of limitations, and, not having been set out in tbe original answer, is waived.

1. Tbe application is made more particularly under § 140 of tbe Porto Rico Code of Civil Procedure, wbicb allows amendments in certain cases. It is not necessary to decide whether there is any difference between tbe Federal and tbe local .law on tbe subject, but there is a Federal law wbicb, if it is differ■ent from tbe local, would necessarily control. United States Revised Statutes, § 054, Comp. Stat. 1913, § 1591, confers upon tbe Federal court discretion to allow amendments to pleadings upon any terms it may tbinlc proper. The power therefore exists. The question is, Shall it be exercised under the facts of this case?

2. There is no question that, under the American system, the statute of limitations is considered a personal defense which must be pleaded, or it is to be considered waived. There is no reason to suppose that the rule in Porto Pico would be different. The Code of Civil Procedure is copied from that of California and other western states. When, however, is this waiver effective ?

3. The-general rule is that pleadings may be amended up to the time of the trial, and indeed to some extent they may be amended at the trial to meet the evidence. This latter, however, is an exception to the rule, which is that the pleadings must be settled and the issue fixed before a case is ready for trial and' before the trial is entered upon. Up to that time it is permissible to amend any pleading by leave of court, to be .had upon proper showing and hearing of parties in interest. No reason is apparent why this does not apply to the pleading of prescription or of limitations. If the answer contains allegations which are inconsistent with such defense, that may be taken advantage of by setting up that the new pleading is a departure. If the new pleading is something additional to the original pleadings, it may be proper that it be added. In all cases where the court permits amendments it will do so upon terms which will protect the other party. The law wishes cases tried so as to secure justice, and that necessarily involves having the issue fully made up, but if this is not seasonably applied for,' the court will allow a continuance or payment of costs that will prevent injustice to the other side, if it thinks thé amendment should be allowed at all.

In this case, therefore, the proposed amendment will be allowed, but the ■ defendant must, before entering on trial, pay all the expense of the attendance of the plaintiff’s witnesses, and the plaintiff will be allowed a resetting of the case if he so desires.

It is so ordered.  