
    WiNNIPISEOGEE PAPER Co. v. EATON & a.
    
    A deed cannot be reformed in an action at law.
    Covenant, on the warranty of a deed made by the defendants to the plaintiffs July 28, 1875. The plaintiffs moved to reject a brief statement in which the defendants, after certain averments of fact, “ request the court to so reform the deed executed by the defendants on July 28, 1875, that it will in all respects fully accord with the agreement, undertaking, and intention of the parties to it as above set forth, and that such judgment or decree be made by the court as will protect the rights of the defendants.”
    
      D. Barnard, for the plaintiffs.
    
      
      Bingham & Mitchell, for the defendants.
   Doe, C. J.

The deed cannot be reformed in an action at law. The defendant can move at the tidal term for leave to amend his pleading by filing a bill in equity. The question of the form of action is not considered when time spent upon it would be wasted (Peaslee v. Dudley, 63 N. H. 220 ; Joyce, v. O’Neal, 64 N. H. 91) ; but the reserved case shows no reason why the question of the defendants’ right to relief in equity should be tried in the action at law; and bonvenience ordinarily requires that such a point should be tried and decided in an appropriate action, and upon an issue that will not invite a controversy on the question whether the parties are bound by the decision. Parker v. Moore, 63 N. H. 196, 197.

Case discharged.

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