The expression "special circumstances" undoubtedly represents in its minimum import an effort to codify in rule form the limitation imposed by the former Court of Chancery upon itself where it had concurrent jurisdiction with another court. In Hague v. Warren, 142 N.J. Eq. 257 ( E. A. 1947), it appeared that the law court and the Court of Chancery had concurrent jurisdiction over the particular subject. The law court had already assumed jurisdiction when relief was sought in Chancery.
The obvious objections to this type of duplication of effort lend support to the conclusion which we reach. See Hohmann v. Corkran, 100 N.J. Eq. 234, affirmed on opinion below, 102 N.J. Eq. 333; Hague v. Warren, 142 N.J. Eq. 257, 263-268. 4.
See State v. East Shores, Inc., 154 N.J. Super. 57, 64 (Ch.Div. 1977), mod. and aff'd 164 N.J. Super. 530 (App.Div. 1979); Roach v. Margulies, 42 N.J. Super. 243, 246, (App.Div. 195 6). In Hague v. Warren, 142 N.J. Eq. 257 (E. A. 1948), the court said: It is sometimes said that the grant of equitable relief is a matter of grace.
In other jurisdictions, including ours, the jurisdiction of equity was held still to exist although it was rarely exercised, and this because in most instances, where adequate discovery was available to a party in the law court, a court of equity would ordinarily decline to exercise its jurisdiction since the remedy at law was adequate. See Hague v. Warren, 142 N.J. Eq. 257, 260-262 ( E. A. 1948). Although Justice Heher dissented, contending that equity's jurisdiction of a pure bill for discovery was complete and relief should not be denied merely because another court could grant similar relief, he recognized that the entire problem would become moot under the new Constitution of 1947, approved only a few months before at the general election.
The defendant's amended answer denies the libel and asserts separate defenses. After extended intervening proceedings ( Hague v. Warren, 142 N.J. Eq. 257 ( E. A. 1948)), the plaintiff in April, 1949, served notice that he would take the testimony of the defendant before trial. Rule 3:26-1.