N.J. Constitutional Convention: Vol. 4, Page 158

Tuesday, July 1, 1947 (Afternoon session)

MR. BROGAN: Wouldn't this trouble, this conflict, be eliminated if in the court of last resort there was a rule-making power?

MR. WATSON: Yes, sir. Where a case presents both legal and equitable issues, which court should exercise jurisdiction would be decided by rules promulgated by the top Court of Appeals.

MR. BROGAN: You couldn't go into equity with a shred of equity and that much law.

MR. WATSON: It would be dismissed.

VICE-CHAIRMAN: You referred to a unified court with provision in the Constitution to allow to the Court of Appeals the rule-making power to change divisions, or enlarge divisions, or create new divisions, as experience required?

MR. WATSON: I say that I favor that. I think it makes for flexibility, efficiency. The presiding justice would know the capacity of the judges, their experience, their attainments, and he will assign them not only where they are most useful, but where they are most needed.

I did say there is a strong sentiment in this State - we hear much about specialization of equity judges. I can't subscribe to that. There are lawyers who practice in both courts. I wouldn't hesitate to take a case in a court of law, or in the court of equity. Now, if I can try cases there, if I were a judge, why couldn't I decide cases there? Chief Justice Brogan never sat in a court of equity, but in the Court of Errors and Appeals he was the presiding judge, in the court that reviewed all equitable decisions, and I say here that he did it very well. A genuine expert. I think the sentiment is rather ill-founded.

MR. SOMMER: I was going to suggest that in the court of last resort you have no one especially qualified in equity sitting, because you disqualified the Chancellor.

MR. BROGAN: Is that quite true? If a man sits for a term or two in the Court of Errors and Appeals reviewing equity decrees and studying equity cases and equity principles, is he not quite expert in equity?


MR. BROGAN: Why should he not be?

MR. SOMMER: I don't know.

MR. BROGAN: The answer to that would be the nisi prius judge, when he is tossed into an equity court, with a string of trust cases, and constructions of wills, and so on. How would he do with those things?

MR. WATSON: I agree to that. I think there should be an equity branch and a law branch. The question put to me was whether there should be a flexible system for the judges to go from one court to another as the circumstances dictate or whether they

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