63 N.H. 599 | N.H. | 1885
The progressive introduction of oral and written forms and methods of pleading, proof, trial, judgment, and process, initial, intermediate, and final, under the common law of every nation, from the beginning to the -present time, has not been illegal. “Every subject of this state is entitled to a certain remedy, by having recourse to the Jaws, for all injuries he may receive in his person, property, or character ; to obtain right and justice freely without being obliged to purchase it, completely and without any denial, promptly and without any delay, conformably to the laws.” Bill of Rights, art. 14. Conformably to a principle of our common law,- in this article comprehensively and strenuously affirmed, for ascertaining, establishing, and vindicating contested rights in civil cases, each party has such remedy, including form, method, and order of procedure, as justice and convenience require. Metcalf v. Gilmore, 59 N. H. 417, 433, 434, 435; Walker v. Walker, 63 N. H. 321, 326. This court has not been intrusted with the power of directly and formally abolishing substantive rights of person and property, or the scarcely less dangerous power of infringing them mdirectly by withholding the necessary incident- and appurtenant right of complete and prompt remedy. Within constitutional and statutory limits, and upon due consideration of what is just and convenient in a legal view that may be broader than the facts of a single case, parties are entitled to the most j.ust and convenient procedure that can be invented.
“In * * early times the chief judicial employment of the chancellor must have been in devising new writs, directed to the courts of common law, to give remedy in cases where none was before administered. And to quicken the diligence of the clerks in the chancery, who were too much attached to ancient precedents, it is provided by statute (Westm. 2,13 Edw. II, c. 24) that ‘whensoever from thenceforth in one case a writ shall be found in chancery, and in a like case falling under the same right, and requiring like remedy, no precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one; and if they cannot agree, it shall be adjourned to the next parliament, where a writ shall be framed by consent of the learned in the law, lest it happen
“ It is a settled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury its proper redress.” 3 Bl. Com. 109. The efficient operation of this maxim in this state does not depend upon such forms as happened to be invented, for particular cases, by clerks “too much attached to ancient precedents,” or by chancellors engaged in enlarging their own jurisdiction upon “ a strained interpretation,” and “false and fictitious suggestions.” If the common law had
In an action for taking, detaining, or converting personal property, an order may be made allowing the defendant to surrender all or a part in mitigation of damages. Fisher v. Prince, 3 Burr. 1363; Brunsden v. Austin, Tidd’s Pr. 490 (3d ed.); Watts v. Phipps, Bull. N. P. 49; Earle v. Holderness, 4 Bing. 462; Colby v. Reed, 99 U. S. 560, 566. Fisher v. Prince was decided in 1762. Upon motion, the defendant obtained an order for the plaintiff to show cause why, upon the defendant’s delivering to the plaintiff the several goods and chattels for which the action was brought, and paying him his costs to the day of making the motion, further proceedings should not be stayed. It was urged on the part of the plaintiff that the motion was, in effect, to bring the goods into court; that it was contrary to the course of the court to bring in the thing demanded (excepting the single case of trover for moneys numbered) ; and that the reason which has been often given is, that the court do not keep a warehouse. “ Lord Mansfield said, it is a pity that a false conceit should, in judicature, be repeated as an argument. ‘ The court does not keep a warehouse.’ What then ? What has a warehouse to do with ordering the thing to be delivered to the plaintiff? Money paid into court is payment to the plaintiff. The reason and spirit of cases make law, not the letter of particular precedents. In trover for money numbered, or in a bag, the court have ordered it to be brought in : yet the jury may give more in damages; they may allow interest (and in some eases they ought). The reason holds to every other case where a thing clearly remains of the same value; yet the jury may give damages for the detention. I remember its being done twice or thrice in things of small value. It ought to be done to prevent vexatious litigation, which a plaintiff may be tempted to pursue when in all events he is sure of costs. It ought to be done because it is the specific relief. * * An estimated value is a precarious measure of justice compared with the specific thing. * * Such motions ought neither to be refused or granted of course. They must depend upon their own circumstances.”
In mitigation of damages, a plaintiff may be required to accept
Statutes allowing amendments of form and substance in any stage of the proceedings, are reenactments of the common-law right of litigants, compelling judges to do their common-law duty. 3 Bl. Com. 407-411; Rex v. Wilkes, 4 Burr. 2527, 2567-2572; McKean v. Cutler, 48 N. H. 370, 376. The notion, that when judgment had been given and enrolled no amendment could be made at a subsequent term (3 Bl. Com. 407), was long ago abandoned. A judgment rendered in 1817 (Chamberlain v. Crane, 1 N. H. 64) was amended in 1827 “with a saving of all rights acquired by third persons under the judgment.” Chamberlain v. Crane, 4 N. H. 115. After writ of error brought, an erroneous judgment and an erroneous execution may be vacated or corrected on motion and notice; and other proceedings may be stayed to await the result of the motion. Rees v. Morgan, 3 T. R. 349; Rowell v. Bruce, 5 N. H. 381, 383; Bellows v. Stone, 14 N. H. 175, 203; Chase v. Wyeth, 17 N. H. 486, 487, 488; Wiggin v. Veasey, 43 N. H. 313; Judge of Probate v. Webster, 46 N. H. 518; C. P. Inst. v. Stone, 52 N. H. 365, 367; W. Bank v. Clement, 58 N. H. 533; County v. Clark, 60 N. H. 209 ; Moore v. Carpenter, 63 N. H. 65 ; Clough v. Moore, 63 N. H. 111. To cure a defect of form, an amendment may be ordered ; but without an amendment, such a defect may be disregarded. 3 Bl. Com. 407 ; Rowell v. Bruce, 5 N. H. 381, 383; Berry v. Osborn, 28 N. H. 279, 286, 287; McKean v. Cutler, 48 N. H. 370, 376. The form of action may be changed by amendment. Rider v. Chick, 59 N. H. 50 ; Stebbins v. L. Ins. Co., 59 N. H. 143. Counts in contract and tort may be joined in the original declaration, or by amendment before or after verdict. Merrill v. Perkins, 59 N. H. 343; Rutherford v. Whitcher, 60 N. H. 110; Elsher v. Hughes, 60 N. H. 469; Peaslee v. Dudley, 63
Upon inquiry in this case at the trial term, it may be found that the question whether the trustees or the railroad, company should be defendants ought to be decided in a suit in which the company, as well as the trustees and the plaintiff, will be bound by the decision. The plaintiff can be ordered to file an amendment joining the company as defendants, and they can be summoned by a duly attested copy of writ, amendment, and order of notice. Laws of 1883, c. 22. It is not admitted or proved that the whole controversy cannot be conveniently tried and adjudicated in this suit. A bill in equity (Webster v. Hall, 60 N. H. 7) may not be necessary. Davis v. Bradford, 58 N. H. 476, 480. In assumpsit for a debt which the defendant admits was once due from him to the plaintiff, the plaintiff may fail because the jury find a debt of the same amount was due to the defendant from A, and the three agreed that A, instead of the defendant, should be the plaintiff’s debtor. Heaton v. Angier, 7 N. H. 397; Morse v. Allen, 44 N. H. 33. Bringing an action against A, the plaintiff may fail again because the jury find there was no such agreement. His remedy might be inadequate if his first action could not be one in which the three
It does not appear that issues between this plaintiff, the trustees, and the company will raise any practical difficulty of trial, or that the plaintiff can be justly driven to another suit by the circumstance that this railroad is run by trustees. The trustees and the company may act together in resisting the plaintiff’s claim. It may be their duty to do so. If the plaintiff obtains a verdict, the judgment can be put in a form that will impose the liability upon the party by whom, and the prbperty out of which, the judgment should be satisfied; and the form of the judgment in that respect may be a question that can be equitably postponed until it is settled that the plaintiff is entitled to judgment. If the trustees’ personal liability is asserted by the plaintiff or the company, and it becomes necessary to try that part of the case, it can be tried at a proper time. Whether all or a part only of the issues in any action between two parties shall be 'tried at one time, and which shall be tried first, is a question of justice and convenience, and ordinarily a matter of fact, to be determined at the trial term. Bemis v. Morey, Carroll, June, 1883; Clough v. Fellows, 63 N. H. 133; Pearson v. Railroad, 63 N. H. 534; Dole v. Pike, 64 N. H.
Motion denied-