N.J. Constitutional Convention: Vol. 4, Page 146

Tuesday, July 1, 1947 (Afternoon session)

judge where the actions are, in a sense, split. That is to say, where law questions arise in a Chancery suit, or equity questions arise in a law suit. That is one thing I have heard complained of. The expense I have heard complained of. I have heard it said - indeed, I saw in the press not so long ago; it was somebody's observation - that a large part of the appeals from Chancery consist of disputes over jurisdiction, as to whether it was law or equity, and that that was a wasteful procedure. Also, I have heard it said that matrimonial causes should be transferred from the Court of Chancery to the courts of law.

This is not the time to make detailed distinction between equity and law as branches of jurisprudence. Sufficient now to say that there is a substantial distinction between law and equity which at this time nobody, so far as I know, proposes to wipe out, and which may not be wiped out without throwing our entire judicial structure into chaos.

Further, I do not understand that there is presently substantial support for the proposal to have but one group of judges who shall hear each case as it comes, whether law or equity. That certainly was not the provision in the proposed 1944 Constitution.

MR. BROGAN: Chief Justice Case, I want to ask you this: The main objection seemed to be that the Court of Errors and Appeals wasted a lot of time in deciding questions of jurisdiction, and that law and equity get delayed in appeals where the question of jurisdiction is raised and there is reversal. Now, of course, I know the history of that just about as well as anybody - I have followed the court decisions - and I want to point out that those cases are very few in comparison with the hundreds of cases that go in and out of equity every year. Assuming that it is a question of a difficulty which should be met, would the court have, well, any remedy?

CHIEF JUSTICE CASE: In the first place, I call attention to the fact that inasmuch as the two systems are not being merged into one system, there are different principles applicable to each. In other words, whoever tries a case, if he tries a Chancery question, he must try it by chancery principles. If it is a law question, he must try it by legal principles. Now, if he makes the mistake, which is the mistake that has often been the occasion for these appeals, of applying equitable principles to settle legal questions, or if, on the other hand, he uses legal principles to decide an equity question, that will still be a ground for appeal.

VICE-CHAIRMAN: Except that on appeal, if you had the merged system, the appealing defendant would lose, where under either principle the plaintiff would be entitled to recover.

CHIEF JUSTICE CASE: That frequently comes in the matter

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