N.J. Constitutional Convention: Vol. 4, Page 683

LETTER OF JUDGE GUY L. FAKE

(Copy of letter sent to President Robert C. Clothier by Augustus C. Studer, Jr., Esq., June 16, 1947, and referred to the Committee on the Judiciary.)

April 8, 1947
Chancellor A. Dayton Oliphant, State House Annex, Trenton, N. J.

Dear Chancellor Oliphant:

As you of course know, we who sit in the federal courts follow the decisions of our state courts in cases where diversity of citizenship is at the base of our jurisdiction. In the performance of our judicial duties we sit at times as law judges in the cold atmosphere of the law and at others as chancellors in the warm humanities of the equity jurisdiction. When we sit in equity we are therefore, of necessity, brought in direct association with the decisions of the New Jersey Court of Chancery.

It has been a matter of deep satisfaction with me to note that some of our leading lawyers and judges who, a few years ago, were rather inclined toward a mingling of the Court of Chancery with the law courts have, after more mature deliberation, changed their minds. Research into the subject of equity jurisprudence and a consideration of the history of its development as it has emerged over the centuries, leads I think, to a firm conviction that beneficial evolution in this field to meet modern conditions will be seriously retarded by a failure to maintain the separate judicial forum in which it has functioned over the years here in this State. Administrative improvements may well be in order but never the destruction of the Court of Chancery itself as a separate entity. I feel very deeply on this subject and it has seemed to me to be within the proprieties to express my views to you in the hope that they may be helpful in any way you may see fit to use them.

When I came to this bench some seventeen years ago it was not long before I discovered that a serious conflict existed between the Court of Chancery and the Federal Bankruptcy Court. A conflict which required the exercise of great moderation on the part of the vice-chancellors on the one side, and the federal judges on the other to avoid a very mean situation. It arose in this way: the vice-chancellors claimed jurisdiction to fix fees and allowances in receivership cases after petitions in bankruptcy had been filed in this court. We claimed that bankruptcy was supreme and that instantly on the filing of the petition the title to the estates in Chancery became vested in the federal courts. A situation soon arose where the


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