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In general, the law in this Commonwealth with respect to amendments is more liberal than elsewhere, and cases from other jurisdictions are not in point. “There is ample authority for the proposition that where an action has been commenced before the statute of limitations has run, a plaintiff may be allowed to substitute one defendant for another after the statute of limitations has run against the proposed substitute defendant.
Most of the federal courts which have considered the matter have held that a motion is not a pleading within the meaning of Rule 15(a).
Thus a mere filing of a motion to dismiss does not prevent the plaintiff from amending his complaint as a matter of right.
Assuming that the prosecution witnesses failed to identify exactly who inflicted the fatal wounds on Joey during the commotion, Erwin’s liability is not diminished since he and the others with him acted with concert in beating up and ultimately killing Joey.
Conspiracy makes all the assailants equally liable as co-principals by direct participation.
After the amendment has been allowed and the defendant brought into court by due process, the substitution relates back to the date of the writ and makes the substituted defendant a party from that date.
We discern no difference in principle between permitting a plaintiff to substitute a defendant and permitting a plaintiff to add a defendant. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. Under prior practice an amendment setting out new causes of action could not be allowed. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. Thus an exception to the denial of a motion to amend merely raises the question of abuse of discretion by the trial judge. Rule 15(d) provides that the court, upon motion of a party, may allow the party to serve a supplemental pleading setting forth transactions, occurrences, or events postdating the pleading sought to be supplemented. Introduction - Special Notice Money Orders - Postdated Checks - Restrictive Legends Stale Dated Checks - Ownership Disputes - Stop Payment Orders Over Drafts - Dead or Incompetent Customer - Breach Of Fiduciary Duty If a customer reports that one of the above types of instruments (hereinafter referred to collectively as cashier's check) is lost, stolen, or destroyed, and the check was issued in a state which has adopted revised Section 3-312 of the UCC, there is a procedure to be followed to make a claim. This rule differs slightly from previous Massachusetts practice. Massachusetts practice is more liberal than Federal Rule 15(c) in allowing amendments adding or substituting party defendants after expiration of the period of limitations. E.2d 807, 809-810 (1967) in the following language: “.