N.J. Constitutional Convention: Vol. 4, Page 237
where the cases should have started at law rather than at equity?
MR. BROGAN: There is no percentage here. In volume 137 of the Equity Reports, I think, 25 per cent of the cases involved jurisdiction.
MR. KAUFMAN: If there were mistakes made in the last few years it's unusual. As a matter of fact, in the work that I have done for the Bar Association over the years, in connection with this conflict between law and equity - this isn't the first one - the main critics of the Court of Chancery have been lawyers who rarely had a case there. And there is nothing difficult about it. It's like starting a suit at law - the interpretation of the rules, applicable sections, counterclaims, and the like. The mere fact that you have merged all the actions into the one cause of action and have simplified the rules, doesn't mean you simplify the trial work at all. It's a question of personnel; it's a question of the type of case; and each one stands on its own feet.
Take the Practice Act of 1912, which abolished common law pleading. You know as well as I do, Chief Justice Brogan, that because of the way the law courts are set up you can't appeal, except after final judgment - and then they take the rule that if there is no substantial harm, we won't reverse. There haven't been so many cases interpretive of the rules, motions, or appellate work along those lines, for we know, as a matter of fact, that the number of cases that can be reversed at law are few and far between, because the duty of the trial judge is very limited to the inclusion and exclusion of evidence. And how many cases, criminal cases, have you found in the last five years that have been reversed because the judge made a mistake in the ruling on a question of evidence? Very few, because you go to the substantial error rule. On the equity side, you very rarely reverse because of the inclusion or exclusion of evidence. You review all the facts, and when you reverse you say, we are just as capable of judging these facts as the Vice-Chancellor.
MR. McGRATH: Have you any ideas on whether the Prerogative and Chancery Courts should be merged?
MR. KAUFMAN: I would put all the prerogative work into the Court of Chancery, because I think that is where it belongs. As to how it would work, I think along the lines of most people here - that a person is entitled to at least one appeal, as of right. If you are going to have an intermediate appellate division, you might clear all the appeals from the inferior courts to the appellate division and let it stay there.
With respect to appeals from the Court of Chancery and the Supreme Court, I think there should be one appeal, right to the highest court - the Court of Errors and Appeals - without any certifica-
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