Owen v. Weston

• Decision Date: 12 March 1886
• Citation: 63 N.H. 599,4 A. 801
• Parties: OWEN v. WESTON and others.
• Court: New Hampshire Supreme Court

4 A. 801

63 N.H. 599

OWEN

v. WESTON and others.¹

Supreme Court of New Hampshire.

March 12, 1886.

Case against the defendants, alleged to be the trustees of the Manchester & Keene Railroad, for an injury received by the plaintiff March 19, 1881, while riding as a passenger "on the cars procured and run upon said railroad under the control and direction of said defendants, as trustees, as aforesaid." The defendants moved to dismiss on the ground that the railroad corporation should be defendants instead of the trustees.

D. H. Woodward, for plaintiff.

J. W. Fellows, for defendants.

DOE, C. J. "Every subject of this state is entitled to a certain remedy, by having recourse to the laws, 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. 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. Conformably to the common law of this state for ascertaining, establishing, and vindicating contested rights in civil cases, each party is entitled to such remedy, including form, method, and order of procedure, as justice and convenience require. Metcalf v. Gilmore, 59 N. H. 417, 433-435; 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 power of infringing them indirectly by withholding the incidental rights of complete and prompt remedy. Within constitutional and statutory limits, parties are entitled to use the best procedure that can be invented; but, in determining what is best, it may be necessary to look beyond the peculiar circumstances of one case.

In trover an order maybe made that, upon the defendant's surrendering a part of the articles for which the action is brought, the articles surrendered shall be struck out of the declaration. Fisher v. Prince, 3 Burr. 1363; Brunsdon v. Austin, Tidd, Pr. (3d Ed.) 490; 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 often been given is that the court does 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 cases 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 it 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 nor granted of course. They must depend upon their own circumstances."

In mitigation of damages, a plaintiff may be required to accept a conveyance of land claimed by him. Towle v. Lawrence, 59 N. H. 501. A plaintiff may be required to file a bond to indemnify the defendant against claims. "If it be said that the court of law has no power to decree that the plaintiff shall file a bond of indemnity, the answer is that such court can stay proceedings until it is filed, as it appears that it is not necessary for the security of the defendant." Hill v. Barney, 18 N. H. 607, 610. A defendant may be required to surrender a release, and his plea of release may be set aside. Webb v. Steele, 13 N. H. 230, 239; Gerrish v. Clough, 36 N. H. 519, 524; Holly v. Huggeford, 8 Pick. 73, 77, note 3. A will may be admitted to a limited probate. Marston v. Marston, 17 N. H. 503, 508. By a great variety of orders in suits at law objections may be removed, and specific protection and relief may be given to each party. Cheshire Prov. Inst. v. Stone, 52 N. H. 365, 367, 368; Hobbs v. Hobbs, 58 N. H. 81; Morrill v. Hovey, 59 N. H. 107, and cases cited; 2 Suth. Dam. 271; Rawle, Cov. (4th Ed.) 281. The common law has not ceased to require the invention of forms of action demanded by the convenience of justice. Walker v. Walker, 63 N. H. 321, 326.

Statutes allowing amendments of form and substance in any stage of the proceedings are re-enactments of the common-law right of litigants, compelling judges to do their common-law duty. 3 Bl. Comm. 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. Comm. 407,) was long ago abandoned; and 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 Durn. & E. 349; Rowell v. Bruce, 5 N. H. 381, 383; Bellows v. Stone, 14 N. H. 175, 203; Chase v. Wyeth, 17 N. H. 486-488; Wiggin v. Veasey, 43 N. H. 313; Judge of Probate v. Webster, 46 N. H. 518; Cheshire Prov. Inst. v. Stone, 52 N. H. 365, 367; Warner Bank v. Clement, 58 N. H. 533; County v. Clark, 60 N. H. 209; Moore v. Carpenter, 63 N. H. 65; Clough v. Moore, Id. Ill. To cure a defect of form, an amendment may be ordered; but without an amendment such a defect may be disregarded. 3 Bl. Comm. 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. Insurance Co., Id. 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, Id. 469; Peaslee v. Dudley, 63 N. H. 220. A new party may be joined as plaintiff after verdict, (Annis v. Gleason, 56 N. H. 16,) and may have judgment and execution in severalty for his share of the damages, (Chauncy v. Insurance Co., 60 N. H. 428; Cole v. Gilford, 63 N. H. 60; Brooks v. Howison, Id. 382, 388; City Sav. Bank v. Whittle, Id.——; S. C. 3 Atl. Rep. 645.) A new plaintiff may be introduced by an amendment substituting a trustee for his beneficiary, (Judge of Probate v. Jackson, 58 N. H. 458;) a principal for his agent, (Boudreau v. Eastman, 59 N. H. 467;) a creditor for a surety, (Buckminster v. Wright, 59 N. H. 153.) Misjoinder of plaintiffs and defendants may be cured after verdict. Demeritt v. Mills, 59 N. H. 18. The defendant's pleading as well as the plaintiff's, may be amended after verdict. Hoit v. Russell, 56 N. H. 559, 566; Roulo v. Valcour, 58 N. H. 347, and authorities cited. A law-term case erroneously entered at the trial term may be removed to the law term. State v. Portland & O. R. R., 58 N. H. 113. An action entered in a wrong county may be transferred to the county in which it should have been entered. Bartlett v. Lee, 60 N. H. 168. In a suit at law, either party may be allowed to file a bill in equity as an amendment of his pleading; and in a suit in equity, either party may be allowed to file a declaration at law. Metcalf v. Gilmore, 59 N. H. 417; Walker v. Walker, 63 N. H. 321, 326; Brooks v. Howison, Id. 382, 389. As justice may require that leave to amend may be granted to either party on conditions that will give the other party specific relief, (Bellows v. Stone, 14 N. H. 175, 204,) so justice may require that leave to amend be refused, (Redding v. Dodge, 59 N. H. 98.)

Upon inquiry in this case, at the trial term, it may be found that the question whether the trustee 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...