N.J. Constitutional Convention: Vol. 4, Page 410

Thursday, July 10, 1947 (Morning session)

let us say. The loser, as I understand it, can still appeal, and the Court of Errors and Appeals will say that that point, that incidental law point, must go before a jury. Is that correct, sir?

CHANCELLOR OLIPHANT: Well, I don't contemplate that under a new system.

MR. PETERSON: That is the present rule. I mean that can happen today.

CHANCELLOR OLIPHANT: It happens that lawyers - I don't think it happens very often - where good lawyers, good firms, represent the client, but they get into the wrong court. No question about that.

MR. PETERSON: Well, say it is just a matter of, well, one side's wanting a delay. Now, they have already agreed to try it in Chancery and abide by the results there.

CHANCELLOR OLIPHANT: A purely legal question?

MR. PETERSON: No, just an incidental question, such as an accounting; and then the loser determines that he'll use the remedies that are in the law -

CHANCELLOR OLIPHANT: Oh, no. If he goes in and accepts the jurisdiction of that court, he would not get very far on appeal as to the jurisdiction.

VICE-CHAIRMAN: I think what Mr. Peterson may have in mind is a recent case which was decided by the Court of Errors and Appeals in which an action was brought raising the question of restraining a nuisance. The Court of Errors and Appeals held that the question of title could not be settled by the Court of Chancery.

CHANCELLOR OLIPHANT: Don't you agree to that?

VICE-CHAIRMAN: The question is whether you would permit that to be disposed of in the one action, or would you compel two separate actions in that situation?

CHANCELLOR OLIPHANT: Title to lands cannot be tried except in a law court.

VICE-CHAIRMAN: Then, in that situation, you would compel that the other case be tried by the law court?

CHANCELLOR OLIPHANT: Unless there is specific provision for it some place.

VICE-CHAIRMAN: Would you be in support of a provision which would permit the court of equity, in that situation, to try the case?

CHANCELLOR OLIPHANT: I say that where in a court of equity there is an incidental legal question which can be properly, expeditiously tried, that ought to be done. There are many cases where equitable relief could be granted in law courts, and vice versa. There are cases where it shouldn't properly be done.

VICE-CHAIRMAN: Our specific question was, would you per-

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