N.J. Constitutional Convention: Vol. 4, Page 409

Thursday, July 10, 1947 (Morning session)

I disagree with the wisdom of giving to the rule-making body, as provided in the 1944 draft, Art. V, Sec. II, par. 3, power to make rules as to evidence. Any changes in the existing laws of evidence should be made by the Legislature, not by the courts. No court should have the power to pass on what it has itself done.

I have given you in all candor my views in an endeavor to be of some help. There will probably have to be compromises between divergent and conflicting views. The final product of the Convention will not be as each of us would have it if we were individually writing it, but I am confident it will be a document we can all heartily support, whatever your final decisions may be.

VICE-CHAIRMAN: Thank you very much, Chancellor ... Any questions?

MR. WAYNE D. McMURRAY: I should like to ask the Chancellor if he would amplify a little his reason why a Supreme Court with a Chancery Division would not be as satisfactory as a separate Chancery Court.

CHANCELLOR OLIPHANT: Well that is a matter of names. If you have a Chancery Division headed by a Chancellor, that's, in effect, the same thing as having a Court of Chancery headed by the Chancellor.

MR. AMOS F. DIXON: Your objection, then, lies in the fact that you don't think that one judge should settle both the equitable and legal questions.

CHANCELLOR OLIPHANT: That's one of my objections.

VICE-CHAIRMAN: Chancellor, you suggest that each court be given powers to dispose of issues which are incidental. Specifically, would you permit a law court, which was handling a law case, to dispose of an equitable defense, or would you compel the equitable issue to be tried in the Court of Chancery?

CHANCELLOR OLIPHANT: No, I think there are many cases, as I have said, where a law court could dispose of equitable defenses. I think it should be done under rules.

VICE-CHAIRMAN: In other words, you might have a law action where the defendant pleads equitable fraud, and you would allow the court of law to dispose of the issue of equitable fraud.

MR. HENRY W. PETERSON: On that point, just reversing Mr. Jacobs' observation, a matter of law incidental to the equity case is brought up, and I understood you to say that that should be permitted to be determined by the Vice-Chancellor hearing the case.

CHANCELLOR OLIPHANT: Under proper rules, yes.

MR. PETERSON: Under proper rules. Assume that both litigants, the counsel on both sides, agree that they'll take their cause into the Court of Chancery, even though they know before they go in that there is a law question involved. There's an accounting,

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