N.J. Constitutional Convention: Vol. 4, Page 157
It certainly showed this entire subject of prerogative writs is in a vague, ambiguous, hazy, nebulous state, and something should be done about it.
MR. BROGAN: Did you ever make the kind of a mistake you are pointing to, made by others?
MR. WATSON: Yes, sir. Yes, I have; of course I have.
MR. BROGAN: You asked for mandamus when you should have had certiorari?
VICE-CHAIRMAN: Or vice versa.
MR. WATSON: Personally, I've never had that experience; but I have been in many cases, Chief Justice Brogan, in which questions of jurisdiction, usually on the equity side, have been argued. The last one that I had personally, professionally, was an appeal from the Orphans' Court to the Prerogative Court. When I read the cases as to whether the appeal would lie in the Prerogative Court or whether I would have to go to the Court of Chancery, I just rested my head in my hands. I really didn't know, and I couldn't find out from the adjudicated cases. Now, it is said - I heard it said awhile ago here - that these cases are infrequent. That isn't so. In the first place -
MR. BROGAN: I said that; it was said here.
MR. WATSON: All right. If this Committee will examine the reports for the last year or two, you would be surprised to see how many such cases there are. I think you will find that on the equity side - many cases in which jurisdictional questions are argued at length, in which the Vice-Chancellor spent much time deciding those cases. This case of Vice-Chancellor Bigelow that I referred to, goes back to Governor Cornbury, 1744, and the King's Bench, deciding jurisdictional questions. So it does occur frequently.
MR. BROGAN: Don't you know some judges have to shake the tree of knowledge?
MR. WATSON: But the tree of knowledge bears no fruit. There are many such cases. I think you will find it runs up to 20, 25 - one case in four, five, six or seven that such cases arise. It is a denial of justice. If I were to consult my client, I would say, "Forget one or the other - you have to go to two courts - take your choice." That's the first trouble. Now, the second trouble - and this goes to this system of appeals, or stated terms, which take so long - the delay, the litigation - most lawyers, I think, say to their clients, "If you get a fifty percent settlement, take it. Don't go to court. The winner is a loser."
So this system denies justice, in that it restrains litigants who are entitled to a decision, whether they win or lose, and who could seek it were it not for these archaic, antiquated rules, which were long ago out-moded and long since discarded.
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