N.J. Constitutional Convention: Vol. 4, Page 412


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Thursday, July 10, 1947 (Morning session)

There are very few of these cases, when we come right down to it, where there's any great difficulty because the parties are in the wrong court. There have been, I think, since 1913 only about 70 transfers from Chancery to law, and there have been seven or eight from law to Chancery. I don't mean to say that covers the cases where lawyers come in the wrong court and have been told that their proper remedy was either at law or vice versa. But those are the actual numbers of cases which have been transferred.

MR. THOMAS J. BROGAN: Then you think, Chancellor, that it would be ideal for our purposes, the purposes of the State, in rewriting the Judicial Article, to rewrite it within the present structure?

CHANCELLOR OLIPHANT: Absolutely.

VICE-CHAIRMAN: Chancellor, you refer to the fact that in federal practice there were less jury trials. Hasn't that been the result of the fact that the parties have waived jury trials, as distinguished from a deprivation of jury trials?

CHANCELLOR OLIPHANT: Well, I haven't had much practice in the federal courts - at least I haven't had any for 20 years - but in my talks with men who have practiced in the federal courts, they have to be very careful that they don't get themselves in there without a jury.

VICE-CHAIRMAN: But if they file a demand for a jury they protect their right, and that demand is a two-sentence demand, isn't it?

CHANCELLOR OLIPHANT: I don't know. I am not particularly familiar with the federal system.

VICE-CHAIRMAN: But your suggestion was that a unified court might result in a deprivation of jury trials.

CHANCELLOR OLIPHANT: I don't think there is any question about it. There is an article by the statistical assistant to the Director or Superintendent, or whatever his name is, of the Federal Civil Rules Commission, who, in effect, says that the jury system is an anachronism, and he goes over all the states, the code states, and shows how the fusing of law and equity has drastically curtailed the right of trial by jury.

VICE-CHAIRMAN: Chancellor, I don't question that there are less jury trials. The only point I was making was that that is entirely up to the parties; and if the parties waive jury trial, that is one of the privileges they have under federal practice.

CHANCELLOR OLIPHANT: That may be, but I think any practitioner in the federal courts will tell you that you don't, unless you're mighty careful, have the right to trial by jury in the equity court, or in the federal courts, that we do here; and there is no question about that in New York State (I don't know what the federal system is), where, if you join legal and equitable causes of


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