N.J. Constitutional Convention: Vol. 4, Page 326

Tuesday, July 8, 1947 (Afternoon session)

matters. It is absolutely amazing, and I don't know how they do it, but they do.

VICE-CHAIRMAN: We have two other witnesses yet to be heard, and I wish you would conclude this discussion if you have no further specific questions to ask Judge Smith.

MR. PETERSON: I have just one question, if I may.


MR. PETERSON: If, in your own court, you have a matter that is predominately equity but the element of law crops up, you call in a jury to hear the law portion of the case -

JUDGE SMITH: We discussed that point at lunch. Those cases do arise, and the ordinary case presents no difficulty - and I will show you why by a very simple illustration and one of the most common kind. You will find that in our rules we don't classify cases any longer as equity or civil. They are all civil, but they are jury and non-jury. A litigant must file of record a demand for trial by jury. If he fails to file it, he is presumed to have waived it. Now, we begin there. We find that a man files a demand for trial by jury. His adversary entertains the opinion that it is one in which the man had no right to this common law trial by jury. He moves to strike the demand. This may answer Dr. Jacobs' question on delay. His question as to whether or not it is law or equity is answered very quickly, and he does not have to wait until that case is tried, or even partially tried, because immediately upon the motion to strike the demand for trial by jury, the trial judge will determine at that stage of the proceedings and from the pleadings whether or not the case is one which at common law was cognizable in a court of equity or in the common law court. If he determines that it is one cognizable in the court of equity, he strikes the demand for trial by jury and immediately that case goes on the non-jury calendar and it is tried there. If he decides that it is one cognizable in the law court, at common law, he refuses to strike the demand for trial by jury and the case goes to a jury trial.

Now, a simple illustration would be where a man would sue on a life insurance policy, and under our system you can raise in the law court both your legal and equitable defenses. He raises a defense, and by way of counterclaim he asserts a right to have the policy cancelled because of fraud. Now, in the first place -

MR. SOMMER: That is an "equitable" defense.

JUDGE SMITH: Well, I mean, an equitable fraud as distinguished from a legal fraud. Sometimes we distinguish because, you see, there may be certain grounds which would give them the right to cancellation but no other relief in equity. Now, what does the trial judge do when he is confronted with that situation? The logical thing for him to do is to try the equitable issue first, because if the defendant prevails, there is no reason to try the law suit, is

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