N.J. Constitutional Convention: Vol. 4, Page 419

Thursday, July 10, 1947 (Morning session)

So you must to that extent keep the distinction between equity and law. I don't myself see why there need be this distinction, unless it be this proposed absence of ability of a common law judge to judge equity cases and an equity judge to judge common law cases. That, of course, will exist as long as the system does itself, but I don't think it is beyond the comprehension of a single individual of ordinary competence to be familiar with both sides.

That is all I want to say, but I will be very glad to answer any questions.

MR. DIXON: May I ask the Judge a question?


MR. DIXON: You spoke of the rather radical changes made, I believe, in 1913 and -


JUDGE HAND: 1913 was the first.

MR. DIXON: And 1938?


MR. DIXON: Did those changes result in chaos for a number of years and a lot of increased litigation, as has been pointed out by several witnesses here?

JUDGE HAND: I don't think so.

MR. DIXON: The fear is that if we make changes we are going to have chaos for awhile, millions of dollars worth of litigation, and an upsetting of the courts for 10 or 15 years. Would you anticipate any such thing?

JUDGE HAND: Well, of course, that is prophesy; it's a little hard to say. You have -

MR. DIXON: You have had experience with changes.

JUDGE HAND: Yes, but we didn't start with the same distinction. I think it only fair to say that if you do consolidate, you will find it will take some time to get used to it - if you will pardon my saying so. I didn't mean to take side in this matter. I should say that was one of the penalties of your long delay. I think that you ought not to underestimate the fact that if you are switching a system which has gone on now for over a hundred and fifty years, you are going to have trouble in adaptation, particularly among those who have been trained in the present system. That you have to expect. You see, we never had that, because we never had the separation between the two. That you will have to meet.

When the 1938 rules came in - we haven't found really any difficulty. Perhaps we are too arbitrary. Again and again I've said in my court when a man says so and so didn't plead this or that, I said, "Did you have an opportunity in the court below to know what he was charging you with or what was his claim?" Well, they generally say, "Yes." "Did the judge give you a chance to prepare; are you saying that this was sprung on you?" "No." As soon as he

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