N.J. Constitutional Convention: Vol. 4, Page 119

Tuesday, July 1, 1947 (Morning session)

many there are, but the high court of appeal would be seven - it might be nine or it might be five, I don't know - what would you do with the records? They couldn't all be -

DEAN POUND: You have that same situation in any court; you take one record up and then you provide for printing. But if the case isn't worth printing, often what is commonly done nowadays is that the participants designate the parts to be printed. In some states they don't even do that; where there isn't enough involved to justify a great expense, the court relies on the parties and their briefs stating the parts of the record they relied on, and if there is any controversy they can be provided. Where a lawyer knows the papers are there, he isn't going to make any material misstatement. He can get along with very much less expense. There is no reason for printing in cases that do not really involve enough to justify it.

(One of the Committee members asks about the rule-making power, but was inaudible)

DEAN POUND: The rule-making power is the thing that, I think, more and more of the justices rely on. It's a peculiar idea that we can trust an administrative agency to make rules that affect the most vital and intimate concerns of business and industry, and we can't trust the court to make rules that will operate well.

MR. HENRY W. PETERSON: Dean Pound, suppose in your unified system providing for a Chancery Division, a case is being heard which is properly brought in equity, but a question of law is to be determined. Under the unification the Vice-Chancellor would determine the question of law. But if one of the litigants insisted upon his right of having a jury determine that point of law, and there was no jury sitting in the court house at that particular moment, would that be -

DEAN POUND: We get that problem all the time, and it is generally dealt with by requiring the person who insists that he had to have a jury to make that application early, so that the matter could be arranged for. He couldn't spring it at the last moment.

COMMITTEE MEMBER: Well now, the rules of court in some states provide that in that case you must make your application for a jury at once; and then it can be arranged to have the jury trial, if the party insists upon it, in a way that is perfectly consonant with the operation of judicial systems.

MR. McMURRAY: Mr. Chairman, may I speak to Dean Pound?


MR. McMURRAY: Dean Pound, in the federal system, the judge - I am not a lawyer, so I am asking you this question - the judge trying the case disposes of anything that comes before him, whether it is law or whether it is equity. Now -

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