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


lions will be the same as those now
exercised by the supreme and circuit
court, except in appeals, which will go
direct to the appeals division. The
substantial change here seems to be
merely in name Instead Of the judges
being called justices of the supreme
court and circuit court judges, all will
be called justices of the supreme
court and will do the same trial work
as the circuit judges and supreme
court justices do now.
This paragraph, however, contains
one most important clause. The juris-
diction is to be exercised by the law
division in accordance with the rules
of practice and procedure prescribed
by statute or. in the absence of statute,
by the supreme court. Our present
system of practice and procedure is
based upon the old English practice
and procedure dating centuries ago,
with some notifications in the direc-
ton of greater simplicity and some
technicality made some fifty years ago.
The present procedure is very tech
meal. For example, when a man is
sued upon an ordinary book account or
promissory note the declaration, as 1t
is called-that is to say, the com.
plant or state of demand-of the
plaintiff need not give the defendant
any information at all as to what the
suit is about. Ordinarily the defend
ant is puzzled by being informed that
he was indebted to the plaintiff for
goods sold, for work and labor, for
money loaned, for money had and re-
ceived by the defendant for the plain
tiff's use. for interest and upon an ac-
count stated. The puzzled defendant
is obliged to employ lawyer to tell
him what it means, and even the law
yer can only guess what the suit is all
about Again, it has recently hap
pened and has not been infrequent
that in litigations over the right to
office in a municipal corporations
town, city, borough or township or In
a private corporation, railroad OF
business corporation-the party COM
planning has asked for a writ of GER
tiorari and the court has thought he
ought to have asked for quo war
ranto or a mandamus He has failed
without even having the merits of the
case considered, merely because he
has failed to use the proper magical
words, Just as the man in the story
said Open, Barley, when he ought to
have said Open, Sesame. Apparently
the craftsmen of this amendment
have had this and similar troubles In
mind and have, therefore, empowered
the legislature by statute or the su-
preme court by rule to prescribe mere
practice and procedure.
Probably this power would be exer-
cised in the first instance by the court,
which is more familiar with the diff
culties that arise aud can act more
promptly and effectively, but the court
is made subject to the legislature and
If 1t goes too far can be brought back
and If It does not go far enough can
be stirred up. At the time our present
practice and procedure began the law
was more technical than now, and a
man had no right unless he could find
precedent for a remedy to enforce
his right. Now, an ordinary man, not
a lawyer, will ask himself first, Have
q legal rightly If he has, the law ought
to find him a remedy So far as con-
Germs practice and procedure, all that
is really essential is that the defend
ant should have notice of the claim
made against him, and he should have
q day in court and a fair hearing, and
that the Judge should see that record
is made up showing the exact point
tried out and determined, so that the
point may be settled once and for all.
The amendment puts 1t In the power
of the court and legislature to secure
greater simplicity and avoid technical
tiles, but it does not alter any legal
rights nor empower the court or legis
lature to do so. 1t merely relates to
questions of the method of procedure.
Paragraph 3 contains a similar pro-
vision as to the practice and procedure
in the chancery division. Probably
the court of chancery has never
a man out of court, If he had
good case, merely because he had fall
ed to use certain magical words. He
did not, for example, lose his case be-
cause he asked for an injunction when
he was not entitled to 1t. If he asked
for general relief and proved himself
entitled to do something, he got what
he was entitled to. The trouble here
has been that often a man would have
a good case, but would be thrown out
Of court because Of peculiar system,
the result Of the historical develop
lnent of chancery procedure out Of the
Roman law and the development OF
what is called procedure at law out
Of the English common law. The
main difference between the courts Of
chancery and the courts of law has
been that the former tried cases with
out jury and said to a man you must
do so and so or refrain from doing so
and so, while the latter tried cases
with jury and never said to man
be must do or not do a particular
thing, but only that he must pay dam
ages If he failed in his duty. Now,
It often happens that in order to do
complete justice the court Of chan
,ery ought to make a man pay dam
ages or court of law ought to tell him
exactly what he should do or not do.
To accomplish this at present requires
two suits, one in chancery, one at
aw. Then, again, it sometimes hap
pens that man makes mistake and
goes into chancery when he ought to
proceed in court of law. 1t is these
difficulties which seem to have led to
the adoption of paragraph of section
5. This paragraph authorizes the SUI
preme court to provide by rule for the
transfer of a cause or issue (Which
mean the same thing from the law
division to the chancery division, or
from the chancery division to the law
division, or from the county court to
either division, and for the giving of
complete legal and equitable relief in
any cause in the court or division
where it may be pending. The object
IS to have the whole matter finally set
He'd in one suit.
Paragraphs and 6 Of section 8 hard
" seem to need explanation. One re-
luires a justice of the supreme court
10 hold courts in the several counties.
That is done now. The other author
ICES the legislature to alter the powers
and jurisdiction conferred on any
court since 1874. This date Is fixed
because our present constitution,
which was adopted in that year. pre-
zarvaS intact fha than -ovtsffnO i,1ris-