In a suit in equity brought by a receiver of a corporation, this court held that the bill should have been brought in the name of the corporation and ordered that, upon the substitution of the corporation as plaintiff in place of the receiver, the case should stand for hearing as to the nature and extent of the relief to be granted. The bill having been amended in accordance with this order, the defendant asked leave to amend his answer by setting up the statute of limitations, it being more than six years since the cause of action accrued although that period had not expired when the bill by the receiver was filed. Held, that after the substitution of the corporation as plaintiff the suit continued to be the same that was begun by the receiver and the defendant could not set up the statute.
LORING, J.
It is too plain for discussion that the allowance of the amendment did not entitle the defendants to treat the suit as begun at the time it was made. Since the amendment the receiver is dominus litis, as he was before it was made, and the suit is being prosecuted for those who, by decree of the court appointing the receiver, are entitled to the proceeds, and for whose benefit it was originally brought. The substitution of the company for the receiver as the party plaintiff was made to comply with the technicalities of our procedure. Such an amendment can be allowed to prevent the defence of the statute being set up to a new suit. Costelo v. Crowell, 134 Mass. 280.
Order disallowing amendment to answer affirmed.