N.J. Constitutional Convention: Vol. 4, Page 45

an equitable defense, which defense is not or cannot be heard in a law court, the insurance company must now bring a suit in Chancery to cancel the policy. That won't have to be done under this plan. Everything can be taken care of in the first suit. We also visualize that certain kinds of litigation that are presently of a law nature should be assigned to the Chancery Division so that the separation would be functional, not historical.

Now, where this proposal differs partly from the plan proposed in 1944 is that this plan provides that the judges of the Chancery Division shall be appointed to that Division and shall be in that Division throughout their term of office. There will be temporary assignments, if needed, but we feel that you have to provide for a permanent appointment to keep your equity specialists. With this plan you completely cut the ground from under the feet of the die-hard Chancery men. They haven't an argument left to stand on, and you have all the advantages, or 99 percent of the present advantages. You have a separate Court of Chancery with none of the disadvantages, and all litigation is disposed of in one and the same controversy.

VICE-CHAIRMAN: Do I take it that you propose restricting the power of the Chief Justice or the Court to assign men between Divisions?

MR. McCARTER: If you will turn to the rider attached to page three, paragraph nine, here is where there is a change from the way it was drafted in 1944. We specified that they keep a man where he belongs. To meet the criticism of the die-hard Chancery men we put it this way - Associate Justices of the Supreme Court shall be "subject to liability of temporary assignment, shall remain for their terms of office assigned to the division for which they shall have been appointed." That is because the problem is to get your specialists assigned to each Division and have that Division deal with certain kinds of litigation, and yet enable full justice to be done in one court. We looked for the know-how on that to the English Judicature Act, where the job has been done and which has worked with outstanding success, as any lawyer can say, since 1873 when the Judicature Act was passed.

Look at Section IV, paragraph 2: "The Supreme Court shall be vested with all the jurisdiction and power heretofore vested by the Constitution in the Court of Chancery, the Chancellor, the Prerogative Court, the Ordinary or Surrogate General, the Supreme Court and the justices thereof." Then it goes on to say, paragraph 3: "For the more convenient dispatch of business" - that is a very vital phrase in there; it shows us what the purpose of paragraph 3 is - "the Supreme Court shall be organized in two divisions, the Chancery Division and the Law Division." Then it goes on to paragraph 4 -

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