N.J. Constitutional Convention: Vol. 4, Page 129

Tuesday, July 1, 1947 (Morning session)

action, then since that cause of action should stay there, in order to be in the hands of the tribunal most skilled in handling that cause, it would seem that there should be a complete rendering of justice.

MR. BROGAN: Well, Judge, as a matter of fact, if you file a bill in the Court of Chancery, in a cause of action basically equitable, does not the court, except in rare instances, decide the whole question, even though what you call incidental legal questions arise, and does it decline to do so only in the case involving title to land, or something of that kind?

JUDGE HARTSHORNE: I wish I could pick out a specific case on that particular point. I think it is Adams v Camden Safe Deposit and Trust Co., 121 N. J. Law, as I have cited here - no, it isn't, it is an equity case, but in one of these cases -

MR. BROGAN: They do a lot of funny things.

JUDGE HARTSHORNE: In one of these cases, they alluded to those provisions of the Chancery Act which sought to give Chancery the very jurisdiction of which you spoke, and Chancery said, "No".

MR. BROGAN: Well, doesn't Chancery only let go when in effect inhibited, you might say, in fundamental law?

JUDGE HARTSHORNE: Yes, that is true.

MR. BROGAN: And isn't it a fact that out of, let us say, 500 questions, jurisdiction arises in only one? Not all cases get into court, you know. I don't suppose that three per cent of them get into court.

JUDGE HARTSHORNE: I alluded to that fact here in the cases I cited - just the very few; I didn't attempt to be exhaustive. I didn't allude to any one of the unreported decisions.

MR. BROGAN: As I understand it, we have a fair notion of what is wrong with the present judicial set-up. You are for a top court of appeals and you are for a trial court, with one appeal, which trial court shall consist of divisions to include equity, if that is the way to do it, or a separate institution, if that's the way to do it. You do not think there should be an appellate division?

JUDGE HARTSHORNE: I personally do, at the moment. I think it has its advantages, by screening out appeals, as Dean Pound was speaking about today. There must be some screening process, but whether that screening process is set up, as Dean Pound suggested, by calling in a group of the trial judges to sit en banc - well, it is less formalized that way.

(Question by Mr. McGrath which was inaudible)

JUDGE HARTSHORNE: I certainly agree, sir; there must be a screening process. I have no great fault to find with the New York

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