N.J. Constitutional Convention: Vol. 4, Page 225


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947 COMMITTEE ON THE JUDICIARY
Thursday, July 3, 1947 (Morning session)

it acquired during the years when New Jersey was the haven of large corporations.

Another argument frequently advanced is that equity is inherently a separate system and that it requires a different type of judicial mind; that somebody is supposed to possess an "equitable conscience," as it is sometimes called. They say that equity and law are conflicting systems, and therefore, that conflict should be manifested by a physical separation. Now, I have the authority to the contrary of one of the greatest equity lawyers of all time, Professor Maitland of England. Every lawyer knows Maitland as well as he knows Blackstone, and Maitland says that equity and law are not conflicting systems; he says they are, rather, complementary. He says equity did not come to destroy the law, but rather to fulfill it. Much of equity as we know it in New Jersey, particularly in the concurrent and auxiliary jurisdiction, overlaps the jurisdiction of the law courts, and in these fields it doesn't make much difference whether you go to the Court of Chancery or the court of law. In most cases it depends on who gets the first jump. If one lawyer can jump into the law court, the other fellow might afterward try to remove the case to the court of equity, or vice versa.

I want to point out that equity administers many legal remedies, and that law courts administer some equitable remedies. For instance, Chancery might grant a writ of habeas corpus. As everyone knows, that originally was a common law writ issued out of the common law courts of England. It was preserved in New Jersey by statute. Somebody mentioned an action in quo warranto; that is a legal writ which issues out of the law court. But that writ influenced the development in Chancery of equitable quo warranto and information. But if you trace the history of that writ you will find that originally it was not an equitable writ at all; it was issued out of the law courts. The English Chancellor in those days, when that writ belonged to the law courts, was akin to a clerk, or secretary of state of the king. It was not an equitable writ.

There are some cases in which a court of equity awards damages, as in the law courts. The judgments, at least the money judgments, of our equity court have exactly the same status as do the judgments of the law courts; they may be enforced in the same way; they become liens in the same way. For all practical purposes, money decrees in equity and money judgments in law occupy the same status.

You can even have a jury trial in Chancery. In labor contempt cases the Vice-Chancellor must call in a jury, and it is very much a law jury. And in numerous other cases the Vice-Chancellor may call in juries to try the issues of fact.

The law courts administer some equitable remedies. I'll mention


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