N.J. Constitutional Convention: Vol. 4, Page 380


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

It seems to me that if you were to abolish the Court of Chancery, New Jersey would lose its preeminence as a State in which the principles of equity are well understood and administered. Now, I do not regard that as an idle statement. I will take the time to read to you what Professor Pomeroy said with regard to this in the preface to the first edition of his book. At the time that book was written, the legal and equitable jurisdiction had been consolidated in a number of states. That had been done in some states for 30 years. What he said in regard to that was this -

MR. FRANK H. SOMMER: When was it he made that statement, do you know?

MR. STRYKER: I don't remember the exact date, but it was a very considerable time ago. There have been three or four subsequent editions, but I think the preface to the first, as I recall it, is the only one written by Professor Pomeroy. What he said with regard to that was this (reading):

"Every careful observer must admit that in all states which have adopted the reformed procedure [and what he meant by the 'reformed procedure' is giving legal and equitable jurisdiction to the same court] there has been to a greater or less degree, a weakening decrease or disregard of equitable principles in the administration of justice. I would not be misunderstood; there has not, of course, been any conscious intentional abrogation or rejection of equity on the part of the courts. The tendency, however, has plainly and steadily been toward the giving of an undue prominence and superiority to purely legal rules and the ignoring, forgetting or suppression of equitable notions. The correctness of this conclusion cannot be questioned nor doubted. The considered testimony of able lawyers who have practiced under both systems, corroborate it, and no one can study the current series of state reports without conceding and acknowledging its truth. In short, the principles, doctrines and rules of equity are certainly disappearing from the municipal law of a large number of the states. And this deterioration will go on until it is checked either by a legislative enactment or by a general revival of the study of equity throughout the ranks of the legal profession."

VICE-CHAIRMAN: Pardon me, Mr. Stryker. That was written in 1871. Did you find any similar statement at a later date?

MR. STRYKER: I find no preface written by Professor Pomeroy. In fact, I would say that my examination of the equity decisions in New York - the recent ones as well as the less recent ones - certainly confirms Professor Pomeroy's view. I haven't examined the equity decisions in all the states of the United States. And I might further state, that a comparison of the equity decisions of the Court of Chancery of New York when New York had a Court of Chancery, shows that they are infinitely superior in reasoning and learning than the decisions of the Supreme Court of New York in equity cases at the present time, or at any time since they made the change. That, I think, is something which no one who has examined those decisions would dispute.

Now, it's true that Professor Pomeroy said that he was not necessarily opposed to combining the jurisdictions. He had what he


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