N.J. Constitutional Convention: Vol. 4, Page 650


(Submitted July 1, 1947)

Double Litigation

"The law was made for man, not man for the law." So runs the ancient adage.

However, a multitude of cases reported in our upper courts raise the question whether our present Constitution has not forced our courts to reverse this adage, and give rise to real hardship to our citizens. This matter is one far different from the question as to the relative ease of administration of our courts as separate or joint institutions, or as to the appropriate term by which they should be called. "A rose by any other name would smell as sweet." The question we are now considering is not a technical one, of interest primarily to the legal profession, but the very practical and important one, of interest to every single citizen of the State, of insuring to him swift, sure and simple justice.

In a little book written more than 40 years ago, and, obviously, free from present political partisanship, by a careful writer and student of the law, the chairman, in fact, of the committee which drafted the present Practice Act, our court system was called "the most antiquated and intricate that exists in any considerable community of English-speaking people." (Courts and Procedure in England and New Jersey, Charles H. Hartshorne, 1905). This conclusion was reached not after a comparison of our system with that of the rest of the 48 States of the Union alone, nor with that of England which previously had our present system, but long ago abolished it as faulty, but after a comparison as well with the courts of Canada, Australia, New Zealand and South Africa, if not elsewhere. The author there cited a host of decisions existing, even then, in both our courts of law and equity, which proved that our legal intricacies, forced upon our courts, despite their efforts, by our present Constitution, had continuously resulted in double litigation, with the consequent great loss of time and money to all our citizens when they resorted to our courts to obtain justice. Indeed, as will hereafter appear, this double litigation has repeatedly been extended into triple, quadruple, quintuple, sextuple and even septuple litigation lasting over several years, and, in certain instances, leaving the parties, at the end of these seven court proceedings, exactly where they were when they started.

Now to the cases. Be it said at the outset that since no attempt has been made to search the official reports exhaustively, the cases cited below, numerous as they are, by no means include all that

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