Merrill v. Woodbury , 61 N.H. 504 ( 1881 )

It would be a serious hardship and a grave injustice, if, after the plaintiff has lawfully brought her action as administratrix (G. L., c. 198, s. 10), she should, without fault of her own, lose the suit, because the administrator, subsequently appointed, and disregarding her interests, refuses to come in and prosecute it. Having in good faith undertaken to collect a claim belonging to her husband's estate, in which she has an interest, a compulsory abandonment of the suit may leave her without other redress than the precarious chance of charging the administrator, on the settlement of his account in probate court, for want of diligence and good faith, or the further expense and vexation of a suit upon the administrator's bond. The defendant cannot complain if he is put to his defence on the merits by a trial of this action, which will conclude the rights of all parties. A writ or declaration may be amended in various ways to prevent injustice. The form of action may be changed. Stebbins v. Insurance Co., 59 N.H. 143; Merrill v. Perkins, 59 N.H. 343; Elsher v. Hughes, 60 N.H. 469. One who is entitled to a part of the recovery may be joined as plaintiff (Chauncy v. Insurance Co., 60 N.H. 428); and when justice requires it, a new plaintiff may be substituted for the original plaintiff of record. Judge of Probate v. Jackson, 58 N.H. 458; Folsom v. Orient Ins. Co., 59 N.H. 54; Buckminster v. Wright, 59 N.H. 153; Boudreau v. Eastman, 59 N.H. 467; Hazen v. Quimby, ante 76. To prevent injustice, the writ may be amended by striking out the name of the plaintiff and substituting for it that of the administrator, in whose name the suit may be prosecuted on the plaintiff's indemnifying him against costs.

Exception overruled.

BLODGETT and CARPENTER, JJ., did not sit: the others concurred.