N.J. Constitutional Convention: Vol. 4, Page 229

Thursday, July 3, 1947 (Morning session)

of Errors and Appeals, the opinion in which was written by Chief Justice Case. The Court of Chancery decided the case on the merits. The Court of Errors and Appeals reversed. It held that since the complainant sought equitable relief relative to an easement over lands, the existence of which was in substantial dispute, the complaint should be retained by Chancery, but as to the issue of facts, it must be sent to a law court for trial. In other words, the Court of Chancery will hold the papers until the law court (with a jury) determined the factual issue, and then that determination will be sent back to the Court of Chancery to frame a decree. Under a unified court system we would not have such shuttling of cases back and forth because of jurisdictional limitations.

At present cases are frequently shunted from court to court. For instance, an executor files an accounting in the Orphans' Court; he is ready to proceed with his trial when one of the litigants brings a suit in the Court of Chancery and removes the accounting proceeding out of the Orphans' Court into the Court of Chancery. Now, as a result, much of the time and effort spent in preparing the case before the Orphans' Court is wasted, because now the case has to be tried in the Court of Chancery.

A brings an action at law in ejectment against B. B has an equitable defense. He files a suit in the Court of Chancery and gets an injunction restraining the action at law, and the case is removed from the law court to the Court of Chancery. Much of the time involved in preparing the papers, filing the action, preparing orders and arguing the question of jurisdiction is wasted effort.

I think one of the most aggravating cases illustrating the effect of shunting cases back and forth in the courts is a case in which I appeared recently - and in which I was rather fortunate, the Chief Justice deciding the case in my favor.


The case is Briscoe v O'Connor, and with your permission, I should like briefly to refer to it. It is mentioned in the Law Journal. There the rights of one of the parties were lost in the shuffle because of the shunting of the case back and forth between the law court and Chancery.

One of the disadvantages of the existing separate system of law and equity is the fact that the advantages and miscellaneous remedies that have been adopted by the courts of other states have seldom been adopted in New Jersey.

Now, there are many reasons which have contributed to the falling off of business in the state courts and the increase of business in the federal courts. I think that one of them is our archaic judicial court system, and in back of this is our unprogressive practice and

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