N.J. Constitutional Convention: Vol. 4, Page 244
legal action, then, of course, the cause is going to be transferred under the statute, because the court has no jurisdiction of the whole case. Where the court has jurisdiction in part but not in whole, then the statute is not applicable. However, in those cases where there is an equity principle set up by way of defense - the lawyer starting the suit will certainly know whether it belongs in law or in equity, but he doesn't know what the defendant's going to plead. He may plead a legal defense and an equitable defense.
Now, in the trial of that case, you don't walk into the court, file your pleadings, and be heard the next day. You have to take your place on the list; and it has been our practice in the more populous counties that it takes from a year to two years before your case is reached for trial. Knowing that there are equitable principles involved, it is incumbent upon the astute lawyer, the lawyer who's interested in speaking only for his client and with a minimum of cost, to take steps immediately in the proper court to meet that issue. If an equitable defense is raised at law, he can file his bill in equity on that point, or if a case comes up in equity involving a question of law such as the right at law that has not been established, it's within the power of the Chancellor, and the rules so provide, that an issue can be framed at law and the case sent to the law court for determination.
In many cases the Chancellor, in order to guide his conscience, has seen fit to call upon the litigants to settle the question of fact at law, before a jury. It's not necessarily binding on him, but he can take it in an advisory capacity.
So finally, I claim that there is ample authority under our existing statutes to overcome the difficulties of which we have heard so much. I do think, however, that the Legislature can, and should, enlarge on the Transfer of Causes Act, and I think they can do so and stay within the provisions of our present Constitution, or any constitution that may be adopted by the people on your recommendation.
Now, many of the proponents of the merger - and I'll call it the so-called merger because we really don't merge law, we really have only one body of law - point to the simplified procedure in our federal courts where there's only one form of action. I just had occasion a few days ago to examine the federal rules, and they became effective in September of 1938. So far there are six volumes, each containing 400 pages of cases, interpreting the federal rules of procedure. There are any number of textbook writers who have written volume after volume on the procedure in the Federal District Court. It's most amazing. I think one author has as many as 19 volumes on federal procedure; and there are several others. And then when you delve into the maze of authorities referred to,
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