N.J. Constitutional Convention: Vol. 4, Page 69


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Wednesday, June 25, 1947 (Morning session)

reform of the English judicial system had developed. Those of you who read Charles Dickens will remember his famous case of Jarndyce v Jarndyce. It is perhaps better known than any actual, decided case, but it indicates, as well as anything might, the low esteem into which the Court of Chancery had fallen with the general public in England. The movement for reform culminated in England in 1873 in adoption of the Judicature Act. By that act, all the courts of England were merged into a single High Court of Judicature, with divisions of which Chancery was one. Here, again, the English model became the standard for the revision of judicial structures all over the Dominions. The only remaining independent Court of Chancery in the British Empire is in the Dominion of New South Wales, according to my latest report, which isn't very recent.

In reviewing the entire picture of the historical development of the Court of Chancery, there are two features particularly noteworthy - the first one is that no state, no territory, no nation which had an independent Court of Chancery and once discarded it, has ever recreated it. There is not one such example in history. Secondly, all the information and comment on the experience with totally merged court structures is that the gains anticipated from a centralized administration of justice have been realized, either fully or at least very largely.

One feature of a dual court structure deserves particular attention - all experience demonstrates that wherever two rivals exist, there is an internecine conflict between them. The relations which have prevailed between courts of chancery and courts of law in history are pretty good examples of that.

Now, for modern, everyday, ordinary, commonplace illustrations of that conflict, there are four typical cases referred to in the report. I would like to mention one briefly. Mr. Smith is injured crossing the street, run down by an automobile, and the following day the insurance adjuster succeeds in obtaining a release by fraud. After Mr. Smith recovers, he consults his lawyer who starts an action in the law court and claims damages. The defendant sets up, by way of defense, the release. The parties adjourn to the Court of Chancery and start a new case in that court. The answer is filed, the trial held, and the Court of Chancery decides the release was obtained by fraud and cancels it. Now the parties go back into the law court, try the case over again, and Mr. Smith retires with a verdict for damages. Compare that with the federal court. There would have been one statement by Mr. Smith in which he tells his version of the facts, including the story with respect to the release; the defendant gives his version, including the release; and there is one trial and one final result. The matter is concluded right there. That is one commonplace example of procedure in a merged court.


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