The Mount Holly news. [volume] (Mount Holly, Burlington Co., N.J.) 1891-1942, 1909-08-10

Court Gives In Detail the Various
Proposed Notifications of the Exist
Ing Laws-An Effort to Make Law
Certain, Cheap and Expeditions.
The following address on the pend
ing amendments to the state constitu-
ton was delivered before the New
Jersey Bar association at its last meet
ing in Atlantic City by Justice Francis
]. Swayze of the supreme court:
One of the most desirable things to
be accomplished is to lessen the evil
of the laws delay. The law ought to
be certain. cheap, expeditions. In most
of the affairs of life it is certain. Men
transact their business and hold their
property with comparatively little liti-
cation because they know the rule Of
law which governs their conduct. OF
the millions of promissory notes given
In this country every year, of the mil
lions of sales of goods and chattels in
large and small amounts, of the mill
lions of other everyday transactions
deeds, mortgages, chattel mortgages
very few lead to a lawsuit, and such
lawsuits as arise are more often due
10 disputes about the facts than to
any difference in the rule of law which
governs. The titles to land are for
the most part settled, and we travel
the highways with little fear of as
sault or robbery because the law is
settled and the whole force of the
state backs it up. Such troubles as
arise are due TO the new questions
which come up in society which is
becoming more and more complicated
and to slips in mere procedure.
1t is important that these questions
should be settled as speedily as pos
sible and settled upon their real mer-
its, hampered as little as possible by
techicalities of mere procedure. These
technicalities of procedure arose CEN
turtles ago and are the product of legal
notions quite different from those we
hold today. Experience has proved
that reform is needed, and reform has
come in England and in nearly all of
the states In this country except our
own. 1t is therefore worth while to
see what provision has been made in
the proposed amendments for more
simple and expeditions procedure and
the abolition of unnecessary appeals
which add to the expense of litigation
and give an undue advantage to the
iitigant who has the longest purse.
The provisions which are likely to eff
feet this result are contained in Sec
ton of the third amendment They
make possible reform similar to that
adopted I'm England in 1875, the
results of which were thus described
in 1887 by an eminent English Judge:
Every amendment can be made at
all times and all stages in any record,
pleading or proceeding that is requisite
for the purpose Of deciding the real
matter in controversy. 1t may be as
serted without fear of contradiction
that it is not possible in the year 1887
supreme court to be defeated by any
mere technicality, any slip, any mis-
taken step in his litigation"
The proposed changes are as follows.
Section 5. paragraph 1, of the third
amendment gives the appeals division
of the supreme court o. the appellate
Jurisdiction heretofore possessed by
the court Of errors and appeals, (2) the
jurisdiction heretofore possessed by
the supreme court on writ of error, 81
the jurisdiction heretofore possessed by
the prerogative court and by the ordi-
nary ON appeal, "a such further appel
late jurisdiction as may be conferred
upon 1t by law, 90 such original juris-
diction as may be incident to the COM
plete determination Of any cause on
review. saving, however, the right Of
trial by jury.
This language is necessarily tech
meal and requires explanation.
~ The first change is change only
in the number Of judges who will act
and in the name of the court At pres
ent sixteen judges may sit; the num-
Der is less only when some of the
judges have already expressed an opin
ion in the cause Oh when some are
absent. Under the proposed change
seven only will sit, and as these seven
will sit only as a court of appeal none
win be disqualified by reason of hav-
ing already given an opinion in the
case, certainly after the system is in
full operation; temporarily some may
be disqualified, and In case the APP
peals division is selected from the
judges already in office, as seems prob
able. (2) This does away with dou-
Bile appeal. At present litigant who
Is dissatisfied with a decision in the
circuit court on the trial may appeal
first to the supreme court, and If he
loses there may again appeal to the
court of errors and appeals This adj
vantage of double appeal is resorted
to at present for the most part by
defendants in personal injury cases,
who desire to wear out the patience Of
their adversariss, and by convicted
criminals, who are enabled by the
double appeal now allowed to postpone
the Imprisonment to which they have
been sentenced or in certain capital
cases to postpone the day Of execu-
ton. In fact, this double appeal is
now seldom resorted to except by de-
PENDANTS in criminal cases. In civil
cases most litigants prefer to appeal
direct to the court Of errors and APP
peaIs. The amendment allows only
one appeal.
g. At present in cases involving the
probate of wills and the administra-
ton Of estates and in matters Of the
guardianship of infants the first pro-
ceeding is before the surrogate. From
his action there is an appeal to the
orphans court; from the action Of
that court there Is an appeal to the
prerogative court or the ordinary
these are but names for the chancel-
lori: from the chancellor sitting as
ordinary or as the prerogative court
there is an appeal to the court Of er-
rors and appeals. Thus under the
present system, If litigants are deter
mined, there are three appeals in mat
tates and the property and persons of
infants. Under the proposed system
there would be but two appeals, one
from the surrogate to the county
court and one from the county court
to the appellate division, and the leg
islature is authorized even to take
away the appellate jurisdiction Of the
county court, so that litigants may
appeal direct from the surrogate to
the court of last resort If the legisla-
ture so enacts. "a The legislature
may confer further appellate jurisdic-
ton upon the appeals division. This
needs an explanation. 1t leaves the