The Morris County chronicle. [volume] (Morristown, N.J.) 1877-1915, 1903-08-21

New York.
Our system is undoubtedly based on
the old English system, but il has been
improved from time to time at the sug-
gestion of lawyers until all the old
crudities have been eliminated, and it is
in all respects up to date and is we'll
adapted for the enforcement of all the
rights and the solution of all the ques-
tons which arise out of the complicated
movements of modern society.
1t is said that the Courts of Law and
Equity ought not to be separate, and
that lawyers sometimes make mistakes
by going into one court when they ought
to go into the other, thereby putting
clients to unnecessary expense in that
respect
After somewhat varied experience at
the bar of over fifty years, l affirm that
such instances are very rare, and some of
those which have been cited in support
I of the allegation were not properly
classified, and others were pure expert
ments on the part of the lawyers deliber-
ately made for the purpose of trying to
get their case brought before particular
1 Court where they thought they had the
better chance OF success, when they knew
they were making mere experiment.
| But mistakes of that kind are liable to
occur in every system. The great State
of New York attempted to consolidate
/ its Courts by radical change in the con
stitution of its Courts in the year IS4S-
/ ffty-five years ago-and has been oper-
ating under that system all that time;
and yet she has never been able to abolish
the intrinsic and inherent distinction
| that lies between what is commonly
/ 1a1 10,
| equity. Although the cardinal principle
of her system is that everything in con
troversy between two parties shall be
settled in one suit, and that there shall
be no distinction iii any suit between law
and equity, yet, every year, sutors are
/ turned around by her Court of Appeals
because they have mistaken the form of
their suit and have framed it's law when
they ought to have framed it in equity
OF vice versa.
Probably the finest system used by
English-speaking people is the present
English system, framed with great care
in 1873 or Whereabouts, twenty-five years
after the New York system had been at
work, and with that system in view; and
yet the English lawyers who had that
matter in charge deliberately framed
I their courts substantially as ours are
| framed and kept the same number of
different Courts. They have their courts
of Divorce and Probate and Admiralty,
all held by the same Judge, but with
different names. They have their Com
mon Law division and their Chancery
division of their High Court Of Justice,
but held by different Judges. Their
judges are appointed, in the first place,
either to the Common Law division or to
the Chancery division or to the Probate
division, and the suits are allotted to
these separate sides of what is called one
court according to their intrinsic char
acter. And they have also, as we have,
two or three grades of Criminal Courts
No system of any kind can be adopted
which will make up for lack of learning
on the part of the practitioner A lawyer,
who, for lack either of learning or of
good sense, makes a mistake under one
system is liable to make a mistake under
any other system.
One more word on this subject. Every
intelligent lawyer of experience, who has
studied or thought upon the subject, has
found that the decisions in equity Of those
states which have separate Courts of
equity are looked upon with tnore conf
dence, with more respect, and are con
sidered better authority than those IN
states where the same Judges sit one day
at law and the other day i'll equity. 1t is
no idle boast to say that the decisions of
the old Court of Chancery of the State of
New York and the decisions of the Court
of Chancery of the State of New Jersey
up to this time have more weight in
other courts of the Union than the de
cisions of those courts where the Judges
sit alternately i'll law and equity. In
short, i'll the courts of equity, consti-
tuted as is ours, the sutton who has an
equity to be administered is more certain
of receiving justice than he is in the
other states, where such system does not
prevail.
| repeat here the remark that the tend
ency of modern business is to specialties;
all professions run into specialties The
judge, whose ,mind is occupied from day
to day, month after month, with ques,
tons of dry law, as distinguished from
questions of equity, is liable to get his
mind into rut, SO to speak, and is not
in frame of mind to take up a nice
question of equity and deal with that
and conversely with judge in equity.
And any Judge will find himself einbar-
raised in jumping, so to speak, from one
branch to the other, day after day. He
will feel more confidence i'll the result of
his work and will actually do better work
if he confines himself to one or the other
of the two branches of the modern system
of Jurisprudence.
An accomplished mechanical engineer
may be thoroughly familiar with the me-
chanism of both the steam engine and
the pocket time-piece, and com petent to
repair either, but he would not do as fine
work if he worked at the engine one day
and the watch the next, and so on from
day to day, as he would if he wrought
steadily at one or the other.
Then it is said that the proposed system
gives us too many courts Well, it is
quite plain from what have said already
that we have no more courts of first in
stance than are absolutely necessary.
The several County Courts are all pre-
sided over by one Judge. and they are no
/ greater in number than those of any
other jurisdiction.
| But it is alleged that we do not need
provisions for two appeals.
1t is said that we do not need Court
of Errors and Appeals at all, that every
thing should be finally decided by the
Supreme Court, That system prevails in
some Of the States, and it is perfectly
safe to affirm that where that system does
prevail, the decisions of the courts have
less weight than in those where there is
what is called a double appeal. By less
weight of authority, l mean to say that
in reading them you perceive that palp-
able mistakes have been made.
Fifty years ago, when~a young man
was talking on this subject with the late
- Il.