N.J. Constitutional Convention: Vol. 4, Page 125


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Tuesday, July 1, 1947 (Morning session)

had been broken. Neither of those meritorious questions had been determined after these five proceedings, and in order to determine those meritorious questions the litigants would have to go to two separate courts in addition, common law and Chancery. The report showed that they didn't. Why? I think you can answer it. Possibly they were just tired out.

Obviously, it would seem, in accordance with the principles which the Chief Justice mentioned, that something must be done to enable litigants to obtain justice in one court, at one time, with one possible appeal if they deem an error has been made. And that necessity does not affect in the slightest the question which it strikes me we have been discussing, i.e., what name shall we call these courts? "A rose by any other name would smell as sweet." Whether they shall be separate courts or whether they shall be divisions, what I am calling your attention to here has nothing to do with that. The simplicity, the simple, sure, swift justice which we want, can only exist if we give each of the courts we create complete power to do complete justice.

And it is not at all inconsistent therewith if you have either a separate Court of Chancery or a Chancery Division of an overall court. True, if you have a division, it is easier, as Dean Pound said, to walk across the hall from one division to another than it is to deal with one separate institution and another separate institution. One can be done by a receipt; one can be done by rule of court because it is one court. If you are dealing with different courts, that is a little more difficult; but it can be done in either case - and there is much to be said for both - of having judges who are accustomed to dealing with a certain kind of litigation, continue to handle that kind of litigation. That can continue; that has nothing to do with what I am suggesting here.

Our facts show the inability of our courts to do complete justice when they have their litigants before them. All that would seem to be necessary is to be sure of a simple method of getting the litigation before the right court and then giving incidental powers to the court which is caring for the kind of litigation which it is best fitted to hear. Specifically, if a proper accounting bill is filed before Chancery, or a Chancery Division, then that Chancery Division should have the power to decide such incidental common law questions as arise. Conversely, if a proper matter of common law jurisdiction is before a common law court, that court should have the power to decide not main equitable controversies, but incidental equitable matters which arise in the course of that common law proceeding.

This is not a novel suggestion. New Jersey is novel for not adopting it. England had the New Jersey system and saw the


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