N.J. Constitutional Convention: Vol. 4, Page 147
of proof. It is very difficult to anticipate, and oftentimes there are legal questions and equitable questions in the same suit. That is the sort of action we are talking about.
Now, let us assume another question along that same line. Let us assume that the Vice-Chancellor - call him what you will; the judge sitting in the equity division - has a legal question incidental to the Chancery suit, and it is a question on which the litigant, who is affected thereby, is entitled to a jury trial. Well, now, no matter whether you have a Court of Chancery, or a court of law, or a unified court of equity and law - it doesn't seem to us that there is a great advantage in one system over the other in such matters as that.
The equity court, as a rule, is not geared to try jury cases. Juries are not just pulled out of the air. They have to be brought into court. They have to be summoned. They have to be selected in the first place. There have to be jury attendants. There have to be court officers and constables. There have to be jury rooms where they may go and confer on their verdict. Altogether, it seemed as though questions of that kind - at least so it seemed to us - questions requiring a jury trial would be rather a round peg in a square hole in an equity court - whether you call it Court of Chancery, or an Equity Division. And we think that there ought to be a means of finishing a case where it is tried. I don't think there is a serious dispute about that, provided that things like a jury trial can properly be taken care of. You can't constitutionally deprive a man of his jury, if he is entitled to it.
We didn't see the advantage of a unified court with two systems in any of those matters. It seemed to us that the same problems would persist in an equity division as in a separate Court of Chancery.
MR. McGRATH: You would exclude jury trials in those cases?
CHIEF JUSTICE CASE: My observation on that is no, we don't exclude them, but that the Court of Chancery would be a very difficult court to try a jury case - to get a jury in the first place and to use the jury in the second place.
MR. AMOS F. DIXON: Can a man go into court at any time after a case is started and ask for a jury trial?
CHIEF JUSTICE CASE: I don't think that is a question that can be answered categorically, but here you have a proposal to finish where the case begins, to finish in that court. Now, what would happen today would be this. If a man went to a court of equity with an equity case, and there developed in the course of that proceeding a legal question, a fact question, for which, according to our constitutional provisions, he would be entitled to have a jury verdict, the Court of Chancery would hold the decision until
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