Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-12-31

two shall DO quorum. No associate
judge shall sit therein in the county In
which be resides. The court Of errors
and appeals shall have jurisdiction to
issue writs of error to the superior
court and to receive appeals from the
court OF chancery. But it shall have
no Jurisdiction Of writs OF error to the
court OF oyer and terminer or to the
court Of general sessions &C. nor of
appeals from tho last named court
The determinations nf each OF the two
latter courts arc final and conclusive.
Said court, upon writ OF error to the
superior court, shall consist Of throe
judges, at least: Tbs Chancellor, who
shall preside: the associats Judge. who,
| on account of his residence, could
not sit in the cause below; and ore Of
the judges who did ait in said cause,
and who Is designated by a Constitu-
| tional scheme of rotation. There are
also provisions for specified absences.
Upon an appeal from the court of
chancery the court shall consist of the,
Chief Justice and three associate
judges. Any three of them shall be a
| quorum. st4t IL
The Constitution further provides
that whenever the superior court CON
slider that question Of law ought to
be decided before all the judges, they
| shall have power, in their discretion,
upon the application of either party, to
direct it to be heard before the court
OF errors and appeals. In such case
| tho Chancellor and four Judges shall
| compose the court, the chancellor, or,
| in his absence, the Chief Justice, pre-
siding; and any four of them shall be
a quorum.
| In certain respects, as was it's pre-
decessor the supreme court of 1726 and
| 1892, the said superior cou,t is to bs
regarded as the supreme court Of the
| State of Delaware. As such, however,
it is doubtless sui generis. 1t has final
| jurisdiction Of appeals from the
orphans court and the registers court
of each county. By its prerogative writs
OF certiurari, quo warranto. and
maudanlus, it draws to itself for review
tho proceedings Of inferior officers and
tribunals. It has sole original juris-
diction of all causes Of civil nature at
common law, and its jurisdiction is, by
| the Constitution, expressly declared 10
be cotextensive with the State.
| In it's practice, and in general con-
temptation, it is regarded as a State
court. Nevertheless il sits in every
county; is in part differently composed
in each; and it's records are Ut in
each and all issues of fact or law are
heard and determined by it at the
county seat, and not elsewhere.
10 determine finally, however, all
matters in error in the judgments and
proceedings of the superior court,
writ of error issues to it from the court
of errors and appeals. The terms of
the latter court are held semi annually,
in January and June, at the State
capital. BY recent legislation provision
has been made for calling special
terms thereof.
| The courts OF Delaware, both Of law
and equity, have in most respects,
doubtless. in their organization and
proceedings, and especially in matters
of pleading, practice and evidence,
adhered more closely to the old English
precedents than those of any of her
sister States.
In the Convention of 1881 very
strenuous effort was made by some Of
it's ablest members TO substitute one
Judge court for the thread Judge system.
which latter was finally adopted and
still prevails.
A protractod controversy and
memorable debate ensued. The propo-
| hoNof'lf Wu5 otithtbu ny JOuH
NJ. Clayton, the master spirit of the
Convention, whose intellectual power
and consummate skill dominated that
body and moulded it's action in accord
ance with his visws. The present
Judicial system was his conception and
its adoption his individual achieve
ment.
His fundamental principle was that
In forming Judicial system, especially
for small State, the most important
court ia the court below. He mann
tanned that the stronger the court of
original jurisdiction the sounder would
be its decisions and the fewer the re-
sorts to tho court OF errors and appeals,
and consequently that protracted liti-
cation would bs essenad and its ex.
pense avoided. A three Judge court,
composed exclusively Of trained law
yers, as he proposed, would insure
ability, 'mpartiality, and public con-
tidence in creator degree than ono.
Judge tribunal, and, 10 Delaware par,
ticularly, would produce mere
uniform practice and course of juris-
prudence throughout the State. More
over, in this State of three countios
only, each could have three-Ju Judge
law court of original jurisdiction, CON
stituted out of the five Judges deemed
essential to an efficient State judiciary,
without additional cost to th. public
treasury. Upon this central idea the
present superior court was organized;
and the court OF errors and appeals and
other courts of the existing system
we're constituted in harmony thcre.
with.
The objection 10 this system, most
urged, is that, in the court of errors
AMI appeals, it is possible, fos the
Chancellor and the resident Judge who
did not sit in the superior court in any
cause taken up ON error, to overrule
the Chief Justice and the other two
Judges who sat below and eoncurred
in the decision thcre--that is, for two
to reverse the three IL that one of the
latter who sits above shall adhere to
his decision below. AS a fact, this
result has seltlom-iudeed almost never
occurred. Yet the objection is one
which Mr.. Clayton antieipated and
sndearored to obviate by the constitu.
tlonal provision for reserving, upon
the application cf either party, and
with thu assent Of the court, any ques-
tion of law arising in the superior
court, for hearing and decision by
all the five State Judges in the court
above. With this provision, he claimeu
that the present system would be- liable
10 fewer material objections than, any
other yet proposed in Delaware.
III has now been in operation for Go