It is not necessary to consider whether effective service of New Hampshire process was made upon the defendant in Illinois, since the object of service can be legally and justly accomplished by an amendment in another suit. The plaintiff has an action at law pending in this county against the defendant, in which the defendant proposes to set up his Illinois judgment as a defence. This action, being for an injunction to restrain the defendant from making that use of the judgment, may, by amendment, be joined with the pending suit at law, to the defence of which it relates. At the trial term, a memorandum may be made on the equity docket showing that, by amendment, this case is the equity branch of the controversy of which No. — of the civil docket is the law branch; and a memorandum may be made on the civil docket, showing that this bill, No. — of the equity docket, is allowed as an amendment of the declaration in the suit at law.
This action and the action at law are parts of one proceeding for the decision of one controversy, in one court of united law and equity jurisdiction, in which both parties have already appeared. In that proceeding, the judge presiding at the trial term has no occasion to make an imaginary division and disconnection of the jurisdiction which the legislature have united. It is not his duty to consider himself two courts for the purpose of oppressing the parties by the delay and expense of another unnecessary suit. Courts have invented legal fictions for what was regarded as an *Page 432 advancement of justice; but the fiction that one court is two courts is not to be invented for a mere purpose of injustice. When the powers of giving relief at law and in equity were vested in different courts, the common-law judge did not, by amendment of his record, institute a suit in equity to be carried on before the chancellor. But when the legislature united these jurisdictions in one person, they did not command him to unnecessarily assume a fictitious duality, and unnecessarily maintain a distinction which they abolished. It became his duty to recognize and act upon the unity of his jurisdiction, and to exercise his combined powers in such a manner as to give parties the full benefit of the reformed judicature. It is not for him to resist the law-making power by perpetuating ancient evils and inconveniences, the cause of which that power has eradicated.
When it is discovered in a suit at law that some auxiliary equitable relief is essential, another suit in another court would be necessary if the judge were not a chancellor. In this case, the judge being a chancellor, another suit is not necessary. The question is not what could be done by a common-law judge without equity power, but what is the duty of a judge administering both branches of the law. A new process is not needed to bring into court either party who is there, or, having been notified, is bound to be there. If either party is surprised, or for any reason needs time to meet unexpected evidence, or to prepare for the trial of an unexpected question, a postponement or continuance is a relief for him as appropriate as another suit. Whether, in a suit at law, justice demands the allowance of an amendment for the relief of either party in equity, is a question of fact to be considered upon all the circumstances of the case. There is no more occasion to compel this plaintiff to resort to service of process in this suit, than to put him to a second suit, and a second service of process, for any remedy he might obtain by any amendment in any case.
In a suit at law, it may be found that the reformation of a deed, or other written contract of the parties, is necessary to prevent the rendition of a judgment that would be grossly unjust. Prescott v. Hawkins,12 N.H. 19, 28; Busby v. Littlefield, 31 N.H. 193; 33 N.H. 76. By a scrivener's mistake, a great wrong is to be done unless the mistake is corrected by equity power. The party who would prevail upon the uncorrected mistake cannot be found, and has no discoverable place of abode. The correction of the mistake would leave him no case; without a correction of it the other party has no case; and service of a bill in equity for the reformation of the writing is impossible. The suit at law is on trial. Both parties are present by counsel. In contemplation of law, both parties are there for all the legal purposes of that case. The erroneous writing is a part of the case, and is in the hands of the judge as evidence, — decisive in favor of wrong if allowed to remain false, and decisive in favor of right if made true. It is the duty of the *Page 433 judge to make it true; and the only question is in what proceeding this duty shall be performed. An amendment on which the error of the writing can be eliminated, is as germane as a cross-examination of a witness that leads him to correct his erroneous testimony. The correction of the written evidence is as much a legal purpose of the case for which the parties are in court, as the rectification of the oral evidence.
The statute provides that amendments in matters of form and substance may be permitted in any action, in any stage of the proceedings. G. L., c. 226, ss. 8, 9. And this is a reenactment of the common law. Frost v. Chesley, Smith (N.H.) 202, 203; McKean v. Cutler, 48 N.H. 370, 376; Rex v. Wilkes, 4 Burr. 2527, 2567. If the judge does gross injustice by refusing to allow an appropriate amendment, he must do it for some better reason than the ancient severance of power now united in him. On the question of amendment, nothing can be more immaterial than that severance which has been discarded by statute. The material fact is, not that there was a time and place when and where, if he had been on a common-law bench, he would not also have been a chancellor, but that the legislature of this state have obviated the obstruction of justice that arose from the disunion of law and equity.
Against an amendment based on the existing unity of jurisdiction, it might be asserted that nothing can be done in court without a precedent, and that there is no precedent for such an amendment. But the unity of jurisdiction authorizes such an amendment as could have been made if the unity had been coeval with the common law. In a writ of entry on a mortgage, it is found that the mortgage should be reformed. If law and equity had not been disjoined in England (as by the true principle of the common law they could not be), another suit, with new process and new notice, for the reformation of the mortgage, would be no more necessary than another suit to amend a town-clerk's record or an officer's return, a reformation of which becomes necessary, and is made during the trial. By fair implication, the legislative act uniting the disjointed function prescribes whatever new proceedings are requisite for giving due effect to the union. There can be no good precedent for a reluctant or scanty execution of the statute.
As there was a time when there were no common-law precedents, everything that can be done with them could be done without them. And as nearly all our procedure, including initial, intermediate, and final process, pleading, trial, and judgment, at law and in equity, is of common-law judicial origin, and has been a subject of much common-law judicial alteration, the question arises whether this work is legally done by a court. It must be admitted that, in early times, the distinction between judicial and legislative power was very imperfectly developed, and that consequently there was much judicial legislation which is not evidence of the common law, and has no weight as common-law authority. But the great *Page 434 mass of the precedents of common-law procedure were made, or approved and allowed, from time to time, in the rightful exercise of judicial power. Each of them is presumed to have been introduced because it was deemed reasonably necessary for the convenient ascertainment or vindication of some legal right. And the introduction of each was a precedent for introducing as many more as, at any subsequent time, should be found reasonably necessary for the same purpose. The non-production of a necessary one is; an innovation, — a departure from an immemorial usage that is founded on an elementary principle.
It is a general rule of the common law of rights, that a right is entitled to an adequate remedy for its infringement, and to the use of convenient apparatus of procedure for ascertaining and establishing the right and obtaining the remedy. In many cases such apparatus is not needed. Hoit v. Stratton Mills, 54 N.H. 109, 116; Haley v. Colcord, ante, 7, 9; Hopkins v. Dickson, ante, 235; State v. Morgan, ante, 322, 325. When it is needed, the law requires the court to allow some convenient kind to be used; and what kind is convenient, is a question of fact.
In England, the right, the remedy, and the procedure may be prescribed by parliament: in New Hampshire this may be done by the legislature, under certain constitutional restrictions. By the common law, a judicial decision or act that introduces a form or method of any step of procedure, or accepts it, or follows it as a precedent, or directs it to be followed, is not law, but, at the most, evidence, tending to show what form or method the court think is convenient in fact. Regularity and uniformity of practice are indispensable; and the decisions, rules, and precedents furnish an invaluable ritual of common-law procedure, the development of which can safely continue only with the extreme caution that is; supposed to have generally attended its evolution thus far. As it is not a statutory code, and as the court cannot make law, this ritual is not law. Statutes authorizing the court to establish rules and orders of practice, and prescribe forms of proceeding (G. L., c. 208, s. 6; c. 231, s. 16), are reenactments of the common law. The legislature can no more delegate to the court the power of legislation, than the court can delegate the power of deciding the judicial questions of law raised in this case. The history of common-law procedure is a history of precedents, suggested, invented, or sanctioned by the court because the court regarded them as convenient in fact; altered and improved because the court regarded their improvement as convenient in fact; or laid aside and abandoned because experience, or changed conditions of property, business, and society, called for new ones more convenient in fact than the old.
"When, therefore, by the gradual influence of foreign trade and domestic tranquillity, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges *Page 435 quickly perceived that the forms and delays of the old feodal actions (guarded with their several outworks of essoins, vouchers, aid-prayers, and a hundred other formidable intrenchments) were ill suited to that more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old established forms, which might have been productive of consequences more numerous and extensive than the most penetrating genius could foresee, but left them as they were, to languish in obscurity and oblivion, and endeavored by a series of minute contrivances to accommodate such personal actions as were then in use to all the most useful purposes of remedial justice: and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprising judges, who have sat in our courts of equity, to show them their error by supplying the omissions of the courts of law. And since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their fictions and circuities." 3 Bl. Com. 267. The growth of the action of assumpsit is an illustrative part of the expansion of procedure. Holmes Common Law 274-288.
The ancient chancery practice has been reconstructed by rules of court, and particularly by the rules of December, 1859, drawn by Judge Bell.38 N.H. 579, 580, 605-624. No one supposed that this change was an invasion of the province of legislation. It was universally understood to be a proper judicial step in the path of precedent which requires improvement, and in the path of legal principle which requires the course of procedure to be kept in a condition suitable for litigants seeking the adjustment of their controversies and the defence of their rights. The judicial duty of allowing a convenient procedure, as a necessary incident of the administration of the law of rights, has not been and cannot be repealed by the court: and so far as it has not been changed by statute, it is now what it was at first, and what in the nature of things it must be. We have no more authority to refuse to allow methods of pleading and practice, consistent with the statute, and necessary for expeditious and economical litigation, than the primitive courts had to defeat justice by allowing no methods whatever.
But the plaintiff is not entitled to an injunction. The facts stated in the bill are, that the defendant, Gilmore, sued the plaintiff, Metcalf, in Illinois; Metcalf appeared and contested the suit; there was a trial; Metcalf was sick and unable to attend the trial, *Page 436 in which he was represented by counsel; Gilmore took advantage of Metcalf's absence, and by his false testimony and fraud obtained a judgment which he knew was unjust. The general charge of fraud is insufficient. The particular facts constituting the fraud must be alleged. Lyme v. Allen,51 N.H. 242, 244, 245. In this case, as in Demerit v. Lyford, 27 N.H. 541,549, and Folsom v. Folsom, 55 N.H. 78, the only alleged fraud is in the falsity of evidence on which the judgment was rendered. If the judgment had been rendered in this state, and the plaintiff were entitled to any relief for the cause alleged in this bill, his remedy would be a new trial, upon the result of which the alleged wrong could be rectified and a just judgment rendered that would take the place of, or operate as an amendment of, the one alleged to be unjust. An injunction against the use of the judgment would not be an appropriate remedy, because the rights of the parties, so far as they are brought in question by this bill, should be established by the judgment complained of, or by a correction of it: and as this would not be done by an injunction against the use of it, the bill could not be maintained. If the plaintiff ought to have redress, there should be, not an order forbidding the use of the judgment, but an order making the judgment what it ought to bet so that both parties could use it justly. Being the settlement of a controversy, its use is to be facilitated, not obstructed. The purpose of the law, requiring a judgment to be rendered, is to be accomplished, not by depriving it of its operation and effect, but by making it right, and giving it free course.
A correction of the alleged wrong should be sought in some direct proceeding for the reformation of the judgment, which cannot be reformed on this bill, or in any proceeding in this state. Lyme v. Allen, 51 N.H. 242; Adams v. Adams, 51 N.H. 388. If the plaintiff has a remedy, it is in Illinois. The court of that state might find, as matter of law or fact, that his only remedy was a motion for delay, and an opportunity to prove the facts and show the falsity of Gilmore's testimony, before the judgment was rendered. They might think his counsel should have been fully instructed as to all material facts, and should have taken such a course, at the trial, or before the trial, as would have enabled the court, upon sufficient evidence of the truth, to render a just judgment. Hearing all the evidence the plaintiff has to offer, they might be of opinion that Gilmore's testimony was true, or that, if it was untrue, relief was barred by some fault of the plaintiff or his counsel. On many material points of law and fact, different conclusions might be reached in Illinois and New Hampshire: and there being no right of appeal from one state to the other, the questions of fact and law, raised by the complaint of perjury, should be settled in Illinois. When they are settled in that state, there will be no difficulty here in giving both parties the benefit of the adjudication. If the plaintiff should have time to seek *Page 437 relief in Illinois, time can be given, on his motion, in the pending suit, without an injunction. The plaintiff suggests that an Illinois injunction would have no force in this state. But we must presume that if it were obtained, it would issue upon such a decision of the facts and the law as would preclude controversy here. When the facts and law are determined in Illinois, the judgment by which they are determined will have due effect in this state. If it should be held in Illinois that the only remedy is in New Hampshire, we should consider the case again in the posture in which such a decision would leave it. But we deem it inexpedient to act upon the supposition that such a view will prevail in that state.
Under some circumstances, an award, obtained by perjury or fraud, is, in effect, set aside, on a bill in equity, when there is no other adequate remedy. Craft v. Thompson, 51 N.H. 536, 542, 544; Elkins v. Page,45 N.H. 310; Rand v. Redington, 13 N.H. 72; Truesdale v. Straw,58 N.H. 208. And when relief is given by injunction against a judgment, it is given on the ground that there is no other adequate remedy. Currier v. Esty, 110 Mass. 536, 544. Some of our decisions contain general remarks favorable to injunctions in some cases, against judgments obtained by perjury or fraud, without negligence in the injured party. But such remarks are to be understood with the qualification that there is no other relief, or no other more appropriate. In this state the remedy is generally by an application for a correction of the judgment. An injunction against the use of the defendant's judgment would be as unsuitable as an action at law against him for damage done by his perjury. Hillsborough v. Nichols,46 N.H. 379. If the judgment had been rendered in this state, it could not be attacked in this collateral manner. Demerit v. Lyford, 27 N.H. 541; Hollister v. Abbott, 31 N.H. 442; Gordon v. Gordon, 55 N.H. 399; Brewster v. Page, 58 N.H. 4; Ayer v. Messer, ante, 279; Spofford v. Smith, ante, 366. And in whatever manner it can be attacked, the question of remedy should be tried in Illinois.
It would seem that if any wrong was done that can be remedied, it was owing to this plaintiff's failure to fully instruct his counsel, and produce evidence sufficient to overcome the surprising testimony of this defendant; that the question should have been raised at the trial whether the trial should be postponed till the plaintiff could attend, or furnish the needed evidence; that an injunction against the use of the judgment would not be a proper remedy for the failure of counsel to raise that question; that if the question had been raised and decided in favor of Metcalf, he would have had the most fitting opportunity, and all the opportunity he could ask, to combat the alleged perjury; that if a motion for a postponement of the trial in his behalf was made and denied, this bill is virtually an appeal from the denial; and that if no such motion was made, there was some fault in him, or his *Page 438 counsel, for want of a satisfactory explanation of which the bill is effective.
Case discharged.
ALLEN, J., did not sit: the others concurred.