Rutherford v. Whitcher , 60 N.H. 110 ( 1880 )

If either of the counts in trover or assumpsit had been omitted, it could have been inserted by amendment. Stebbins v. L. Ins. Co., 59 N.H. 143; Merrill v. Perkins, 59 N.H. 343. After the entry of the action, the declaration could be made what it might originally have been. But the statute of amendments, being a reenactment of a common-law judicial duty of disregarding or correcting errors and inefficiencies, does not affect a case like this, in which no amendment is needed. This declaration in trover and assumpsit on a single cause of action is authorized by a general common-law rule, which, in many cases of erroneous or inefficient pleading, operates by amendment, because justice requires an alteration of the pleading, putting it in the form in which it should have been originally drawn. The doctrine of amendments is a mere application of the general law of the original form. That general law would govern in this case if all amendments were constitutionally prohibited. In any suit wherein the common law is not narrowed by legislation, one cause of action may be set out in different forms of action, because, by a fundamental principle, asserted and acted upon at the introduction of common-law modes of pleading and practice, a legal right is entitled to an adequate remedy for its infringement, and to the use of convenient modes of procedure for establishing and defending itself, and obtaining its remedy; and a declaration in different forms, claiming a single right and demanding its remedy, is a convenient mode of procedure, reasonably necessary for the enjoyment of the right. In many cases rights have remedies without any counts or any judicial proceeding, because it would be unreasonable to require a resort to litigation. Haley v. Colcord, 59 N.H. 7, 9. In such a case as this, there is no restriction of a right of action to one form of action, because it would be unreasonable, by such a restriction, to subject the right to the hazard of defeat without a trial of the merits. The common law of remedy by process and pleading is as rational as the common law of remedy without process or pleading. In this state legal rights are no longer sacrificed by unauthorized judicial legislation, prohibiting their use of modes of procedure reasonably necessary for their vindication. Metcalf v. Gilmore, 59 N.H. 417; Davis v. Bradford, 58 N.H. 476, 480; Webster v. Hall, ante, 7; Buzzell v. State, 59 N.H. 61.

Demurrer overruled.

STANLEY, J., did not sit: the others concurred.