N.J. Constitutional Convention: Vol. 4, Page 152

Tuesday, July 1, 1947 (Afternoon session)

MR. WATSON: Very briefly, our Constitution provides that the right of trial by jury shall remain inviolate. That means it can't be diminished below what it was in 1844. So in many cases the judges or lawyers must be historians - to this extent at any rate, as to whether the right of trial exists or not.

Now, quite generally, jury cases, so-called, are tried in the law court. But that is very elementary and too simplified. Quite generally the equity courts - in fact, exclusively, except occasionally in an advisory capacity - equity courts do not employ a jury. Equity cases are tried by a judge without a jury. Where a jury is necessary, for instance, just to use an illustration, if you were partners and if I trespass on your land, and I do it habitually, and have done it for some time, and did it with the intention of continuing to do so, and I do it under a claim of rights, and you want damages for my trespasses, and you want to restrain me from doing it in the future, under our present system you would have to go into the law court for your damages, because damages can be awarded only by a law court and jury, unless the jury is waived. The law court has no jurisdiction to issue an injunction. So, if at the same time you wanted to restrain future trespasses, having established your right in the law court, then you would have to go to a separate court, the Court of Chancery, for an injunction, because the Court of Chancery can allow injunctions, but it cannot award damages.

Thus, we get down to the trial of the case in the court of original jurisdiction. As set forth in the 1944 report, this trial court should be divided into two divisions, sections, branches, or departments - call it what you please - a law court and an equity court, the equity court also having the probate jurisdiction, as now under our present system of Prerogative Court, Circuit Court and Orphans' Court, which are our probate courts and which are quite closely associated with the courts of equity.

Well, now, that is settled. That is not too difficult so far, but the difficulty is - and this is the great controversy raging; I don't know whether "raging" is the proper word or not at the moment - what to do about these cases? They are more frequent than is generally considered. Now, what to do about these cases which exhibit both legal and equitable issues? These are the kind of cases I was just speaking about. Another class of cases that would fall into this group are labor disputes and certain kinds of cases affecting the public interest.

Now, suppose such a tribunal were to make a decision and suppose one party to the dispute wanted to appeal from that decision on the merits, and suppose the other party is recalcitrant and also wanted to enforce the order of the tribunal? Or, suppose the tribunal wanted to enforce its own orders? Now there, under our

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