N.J. Constitutional Convention: Vol. 4, Page 123

Tuesday, July 1, 1947 (Morning session)

of equitable fraud. After that defense of equitable fraud has been ascertained, back it comes to the court of law to determine whether or not, in the light of what has been ascertained in equity, you should or should not be ejected from your land. Now, that again is a very simple situation compared to some of the cases which I have cited here.

The third category is still different. It consists of cases where a single court cannot itself, because of its lack of jurisdiction under the Constitution, do the full justice to which the citizens have a right. Therefore, there must be resort to the other court to supplement the justice which the first court cannot give under the Constitution. Take this situation: I, for instance, am obstructing what you claim is a right of way to your property. You want to get that obstruction removed. The only place where you can get something removed is in Chancery, by mandatory injunction, so your lawyer tells you to file a bill for a mandatory injunction in the Court of Chancery. You do so. When you come to the hearing, however, the Vice-Chancellor says, "Why, gentlemen, whether you, the man who has filed this bill, or the man who has directed the obstruction, owns this right of way is a real property question; and it happens to be a question of law, not a question of equity. I can't decide that question. That question must go over to a court of law to be decided, so I must stop the case right here. You must go over to the court of law to get a determination of the title to the piece of property. Then, when that question of title has been determined, come back and we will decide in the light of that whether or not the obstruction will be removed." That again, I say, is a very simple example of a whole class of cases which, as Senator Hendrickson has shown to you, takes up one-third of the time of the court, getting nowhere. I think the Chief Justice will agree that probably the most difficult legal problems to consider are the ones of jurisdiction.

Now, let's take two specific examples where litigants have gone through double litigation and running up into multiple litigations. These are actual, recorded cases. The first one is Wemple v W. F. Goodrich Co., recorded in 126 N. J. Eq. 220, 127 N. J. Eq. 333 and 126 N. J. Law 465. It involves proceedings in seven different courts. Now, what was the situation? Wemple and some other people had agreed with the Goodrich Company to transfer certain judgments to them. The Goodrich Company failed to transfer them. Wemple wanted the judgments. To get them he, therefore, (1) filed a bill in Chancery to compel the transfer. Chancery decreed the transfer. There was an appeal. (2) The second step was on the appeal. Our highest court reversed Chancery and ordered the bill dismissed because it held that jurisdiction in that situation lay not in Chancery, but in the common law courts. So, (3) the

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