N.J. Constitutional Convention: Vol. 4, Page 368


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Wednesday, July 9, 1947 (Morning session)

or else the Chancellor referred cases for decisions to Masters, Special Masters and Advisory Masters. All of those were practicing lawyers, practicing in the law and equity courts. This was the period during which the domain of equity jurisprudence in New Jersey was being worked out. The formative years are usually the most difficult and the most important. The New Jersey equity principles, of which we are so justly proud, were largely molded by men who did not spend their time exclusively in equity.

It must further be remembered that the supervision of the development of equity jurisprudence in New Jersey has been in the hands of the Court of Errors and Appeals which, on appeals from the Court of Chancery, consists entirely of law judges. Some of the most important doctrines in equity have been established by the Court of Errors and Appeals over the opposition of the Court of Chancery. For example, a leading case is that of Vanderbilt v Mitchell, 71 N. J. Eq. 632, reversed by the Court of Errors and Appeals in 72 N. J. Eq. 910 - and I have had only one course in equity, which I studied under Dean Sommer, who discussed that case -

MR. SOMMER: Did I teach equity?

(Laughter)

Mr. GAULKIN: Vanderbilt v Mitchell is one of the leading cases in equity in this country, and appears in many of the textbooks on the subject. In that case John Vanderbilt claimed that his wife had caused a birth certificate to be filed falsely, showing him to be the father of a child born to her. He demanded that so much of the birth certificate as alleged his paternity be cancelled as fraudulent. Vice-Chancellor Garrison reviewed the authorities, found no record of any such proceeding ever having been maintained, and therefore dismissed the bill, making this comment, which I quote (reading):

"As Pomeroy has well said, the question nowadays to be determined by a court of equity is 'whether the circumstances and relations presented by the particular case are fairly embraced within any of the settled principles and heads of jurisdiction which are generally acknowledged as constituting the department of equity' ...

As I have before said, I know of no recognized head of equity jurisdiction under which this bill could be entertained. The demurrer must therefore be sustained."

That opinion was reversed by the Court of Errors and Appeals, in an opinion by Judge Dill, who was a lay judge of the Court of Errors and Appeals. In an excellent opinion Judge Dill had this to say as to the approach of the Court of Errors and Appeals to equity jurisdiction, as distinguished from the approach of the so-called expert (reading):

"The case presented is novel in incident, but not in principle, but it is no objection to the exercise of jurisdiction that in the everchanging phases


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