N.J. Constitutional Convention: Vol. 4, Page 226


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

a few of them. By the Constitution of 1844 foreclosure suits may be brought in the law court. That is essentially an equitable remedy. On applications to reopen judgments at law, the courts apply equitable principles. The doctrines of equitable estoppel and waiver, which are inherent equitable doctrines, and which originally didn't belong in the law courts, are now administered by the law courts. The right to discovery, which inherently was an equitable right, is now remedial in the law courts under the statutes. In fact, in the last 100 years the law courts, under the statutes, have taken upon themselves many of the old-fashioned equitable remedies - so much so that some of these remedies have fallen into disuse in the Court of Chancery. While the residuary power to exercise these remedies still remains in the Court of Chancery, they are rarely exercised by the Court of Chancery, unless exceptional circumstances at present.

By way of showing this continuous erosion of equitable remedies and their deposit on the banks of the law court, I want to call your attention to a decision which was written by your distinguished member, the former Chief Justice in the case of Herbert v Corby, reported in 124 N. J. L. 249. For perhaps a hundred years prior to that case it was the rule in the Court of Errors and Appeals that a mortgagee had to resort to the Court of Chancery to recover a deficiency against a grantee who assumed his mortgage. I won't trouble you with the legal gymnastics by which the court worked out this equitable theory, but the fact of the matter is that in 1896 the Legislature passed a statute which gave a right of action to a third-party beneficiary for whose benefit a contract was made, although not a party to the contract. Despite that statute, our Court of Errors and Appeals and our Court of Chancery still continued to hold that the remedy in a situation of that kind was exclusively in the Court of Chancery. In 1940 the question arose in our Supreme Court in the Corey case, and the Chief Justice, following the statute passed in 1896, held that that statute had changed the fundamental substantive law of the State, and that since we now recognize the right of a third-party beneficiary to sue on a contract made for his benefit, there is no reason why a court of law can't award the same remedy. His decision in that case, which is a landmark in equity as well as in law, was affirmed by the Court of Errors and Appeals and has since been followed.

In the case of Woodbridge v DeAngeles, which was reported in 125 N. J. L. 578, the Court of Errors and Appeals said that the 1912 Practice Act, which was passed by the Legislature to regulate procedure in the law courts, "was plainly designed to mould procedure and judgments at law, in a large measure according to the patterns in equity." That is the statement made in 1940 by the Court of


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