(after stating the facts). The original reference, as will be seen, was that the referee should “ hear and determine the whole issue in the cause,” that is, the matter controverted in the pleadings. The complaint makes no claim for the unpaid check as a substantive demand, but for an account and a recovery of what may be found to be due the Association. The an*396swer disavows the amount of indebtedness alleged, and admits a-smaller sum to have been arrived at in the examination of the committee, and the giving of full corporate consent to a settlement upon the basis of that report. The defendants’ liability for the sum reported, $37.72, as the result of all preceding financial transactions between the defendant and the Association, is not denied by the plaintiff, while its alleged payment by the defendant is. The parties, not contesting in their respective pleadings, this sum to be the true balance resulting from an adjustment of the dealings, and then due, the referee should, this being a basis of action, have confined his inquiry to the single point of its alleged payment. And for like reasons the claim for the unpaid acceptance was not in the complaint, and is out of the scope of the reference.
The plaintiff’s exceptions to the referee’s report of matters of account which ante-date the action of the committee, of which the defendant was a member, and from which he did not dissent, and which matters ought to have entered, and we assume did enter, into the account stated by the committee, are well taken, and ought to have been sustained. In the Court’s over-ruling them there is error, and judgment should have been given, there being no proof of subsequent payment, for the sum so ascertained in favor of the plaintiff.
The defendants’ counsel insisted in the argument before us, 'that the plaintiff, as receiver, could not maintain the action in his own name, citing in support of his contention, Battle v. Davis, 66 N. C., 252.
It is true that under a system in which legal and equitable rights are administered in separate tribunals, a Court of equity could not confer upon a receiver or officer of its own appointment, a capacity to sue, not recognized in a Court of law. The decision referred to rests upon this distinction. It is otherwise in the present procedure, which requires the party in interest to sue in his own name.
*397But The Code, §668, following a provision in the Rev. Code, ch. 26, §6, similar in this feature of it, expressly authorized a receiver appointed upon a dissolution of a corporation, or a trustee charged with its property, “to collect the debts and property due and belonging to the corporation, with power toprosecute and defend in the name of the corporation, or in the name of-such receiver or trustee, all such actions as may be necessary or proper for the purpose aforesaid.” The statute answers the objection.
As the action can be more conveniently conducted in the Court below, the cause is remanded for further proceedings according to the law, as declared in this opinion, and the plaintiff will recover his costs.
Error. Reversed.