N.J. Constitutional Convention: Vol. 4, Page 157


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Tuesday, July 1, 1947 (Afternoon session)

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.


Previous Page in Book ********* Table of Contents *********** Next Page in Book