N.J. Constitutional Convention: Vol. 4, Page 236


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

cata, but because the record didn't show that counsel asked the pleadings to be molded we find that the decision is res judicata" - and threw them out.

Now, there was no way of putting in, over the wishes of the judge, that a demand had been made to mold the pleadings. It seems to me that the whole fantasy of peremptory writs of mandamus, certiorari, and the discretionary features thereof, should be merged into a petition, and superfluity of writs eliminated. That will enable the matter to be disposed of properly, with the right of the party to be heard.

MR. BROGAN: Now, in an action of mandamus or quo warranto, how would you handle that? Here you are, trying men holding public office. Would you go in with an application for a jury trial?

MR. KAUFMAN: I don't care whether it's by petition or by a rule to show cause, or even -

(Off-the-record discussion)

MR. BROGAN: I wondered if you had thought about it.

MR. McGRATH: Mr. Kaufman, how are you going to abolish that when you are debating between quo warranto and some other writ? How are you going to abolish that?

MR. KAUFMAN: I would abolish all of them, because I'm dealing with many courts. Now, for example, I started with certiorari, and I was moved around to quo warranto, and then I was thrown out on both - and I'm not so inexperienced either. There are a lot of people complaining about the courts, because they are inexperienced. You study these cases and you arrive at an opinion, and you conclude that your remedy is right and go in on it, and then you are thrown out. I would rather have one cause of action for all prerogative writs.

VICE-CHAIRMAN: Mr. Kaufman, why is it so offensive to you to be thrown about from writ to writ at law, and not offensive to be thrown about between law and equity?

MR. KAUFMAN: In all my experience, Mr. Jacobs - I guess I would still be rated as one of the younger members of the Bar - I have never been bumped around from law to equity, and if you read the number of cases that are reported, there aren't so many cases where you jump from law to equity. I daresay that I could match you law for equity in prerogative writs where the remedy was denied because one was chosen rather than the other - a bill in equity, when you should have been at law. It's only in recent years that the conflict has been set up, a conflict between law and equity. You won't find so many. How many do you find in the last three volumes of the Equity Reports - the Court of Errors and Appeals -


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