N.J. Constitutional Convention: Vol. 4, Page 327

Tuesday, July 8, 1947 (Afternoon session)

there? He tries the equitable issue first, and without a jury and without anybody else. That is another thing that may occur. Right then and there, having taken jurisdiction of the matter because of his equity powers, if he decides the policy is valid and enforceable and should not be cancelled, he retains jurisdiction to assess the damage and the trial by jury becomes unnecessary. There the judge entertains his traditional equity power; having acquired jurisdiction of such a matter for equitable purposes, he retains it to do complete justice. Now, he may have to send it to a jury only if there are other matters presented, and I can't conceive of any in trying the question at issue.

MR. WINNE: He probably raises the issue that that is not the man.

JUDGE SMITH: That is a different matter.

MR. McGRATH: How would that work out?

JUDGE SMITH: Then it would go to a jury trial.

MR. McGRATH: Do you think that would be a good working system?

JUDGE SMITH: Only once did I have any difficulty with it, in one case. It required that I do this, and it has proved since that it was a sound practice. There is some evidence that you will take as a judge in trying the equitable issues, but which should not go to the jury because it might prejudice one side or the other. You take all the evidence - that which is relevant and material to the legal issues, as distinguished from the equitable issues - you take it in the presence of the jury. That which is relevant and material only to the equitable issues that are raised by the pleadings you take in the absence of the jury. In this case we assumed the equitable issues were unsound, as an assumption. We let the matter go to the jury, and the jury returned a verdict, I to retain jurisdiction to determine the equitable issues should it become necessary. In that case it wasn't necessary, because the jury returned a verdict in favor of the defendant. It wasn't necessary for the court to consider the equitable issues any longer.

Now, situations like that would occur in many cases. I mean, it is not unusual. Sometimes you will take testimony to determine whether or not it would be prejudicial, or whether or not it is relevant, because you can't determine from the question itself, so you excuse the jury.

VICE-CHAIRMAN: As a result, you always dispose of the case in its entirety, don't you?

JUDGE SMITH: Always dispose of the case in its entirety, except in that sort of situation the one judge would retain it. In the other situation, where the demand for trial by jury is stricken - that comes up on what we term the motion calendar, as a matter of administration. I would determine it on Monday. I would

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