N.J. Constitutional Convention: Vol. 4, Page 217

Thursday, July 3, 1947 (Morning session)


VICE-CHAIRMAN: Now, it also works that way on the equity side in the federal courts. Do you consider that satisfactory?

JUSTICE COLIE: It seems to have worked out fairly well.

VICE-CHAIRMAN: And this problem of calling in a jury doesn't seem insurmountable at all, does it?

JUSTICE COLIE: No, it doesn't, Mr. Jacobs.

VICE-CHAIRMAN: You seem to be worried about this problem of calling a jury. Is that mechanically difficult?

JUSTICE COLIE: No, there is no mechanical difficulty. Of course, it is a slowing-down process, necessarily, if a jury has to be called in.

MR. DIXON: It would be slower if you turned it over to another court - if you back up - and be more expensive for the litigants?

JUSTICE COLIE: I think so. But the fact remains that I fear, unless the litigants consent to the procedure, that you are going to be confronted by a considerable number of cases in which the right to a jury trial is demanded. I believe that happens with considerable frequency, does it not, in the federal court? I don't mean to be cross-questioning you, but I think so.

VICE-CHAIRMAN: That's all right ... It happens with less frequency than anticipated because of a procedural rule, namely, that jury trial is automatically waived unless you affirmatively demand it, with the result that many parties don't demand it even where they would be entitled to it. In federal practice you have not only the ordinary equity cases tried without juries, but many law cases are tried without juries.

JUSTICE COLIE: May I just enlarge on one thing. I don't want to appear in a superior light, but some of you Committee members are not lawyers, but laymen. I am jealous to guard the equity law of the State of New Jersey. I am what is known as a law lawyer. I'm not an equity lawyer, except by reason of being on the Court of Errors and Appeals. But there are few things in New Jersey that we can be so proud of as the body of our equity law, and I don't want to see anything done that would impair it. If the composition of the court that will try equity cases follows the suggestions that I made, namely, that a trained equity mind sit in equity cases, I think it will continue unimpaired.

MR. SMITH: Even though it is a division and not a separate court?


MR. SMITH: I'm confused about this court of intermediate appeal. We have had proposed to us a Supreme Court with several divisions, equity and law, and the appeals from those divisions would be heard where, in your opinion?

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