Pleading-Continued.

nal suit, and cannot be the means of instituting a distinct suit in
relation to other matters, and cannot become the foundation of a
decree as to such matters. Kirkpatrick v. Corning,

136

5. A bill to redeem alleged that the defendant was a mortgagee in
possession; that the complainant was the owner of the equity of
redemption and was ready to pay the mortgage debt. The answer
alleged that the defendant had become the owner of the absolute
title by purchasing the complainant's equity of redemption under
a justice's court judgment against the complainant, docketed in
the common pleas. The complainant filed a general replication.
-Held, that the question whether the title, under the docketed
judgment, was valid or void on its face, was properly put in issue.
Freicknecht v. Meyer,

551

See VARIANCE.

Possession.

Complainants and those under whom they claimed had had fifty
years' open notorious and continuous possession of lands, under
duly recorded deeds purporting to convey the entire estate there-
in.-Held, that their title was valid, as against one claiming
under the former owner of an undivided interest. Watson v. Jeffrey, 62

See DEVISE, 1; PARTITION.

Powers.

A testator devised two houses and lots to two trustees, to receive the
rents thereof, and to apply them to the maintenance of his daugh-
ter's children, with a direction to sell after his youngest grand-
child should have attained its majority. Before that time both
trustees died, and the complainant was appointed by the orphans
court to execute the trust, the order of his appointment pro-
viding that he should not sell the premises without giving addi-
tional security. After the youngest grandchild was twenty-one
years old, he gave the additional security, which was approved
by the orphans court, and sold the property at public sale, the
defendant buying one of the houses. On a bill by the trustee
for specific performance-Held, that, under the statute, the order
of the orphans court conferred upon the complainant the power
of sale vested by the will in the original trustees, and that the
defendant must carry out his purchase. Yard v. Larison,

Practice.

1. A defendant arrested, and in custody under a ne exeat, may, before
answer, apply for the discharge of the writ on affidavits. Cary
v. Cary,

386

3

Practice-Continued.

any order should be made against him by any court, his (defend-
ant's) lawyer would find it out beforehand and would let him
know, so that he could and would leave the state before they
could do anything with him, accompanied by other statements
to the effect that complainant and her father were both poor, and
that he would law them both to death if they attempted any suits
against him, and that he had put all his property out of his
hands, but still had the benefit of it, are sufficient, on an applica-
tion for his discharge, to hold him in custody under the ne exeat.
Cary v. Cary,

3. Where the insufficiency of proof is due to the inadvertence of
counsel, a cause may be ordered to stand over, after final hearing,
for the purpose of supplying the additional proof. Sharp v.
Wyckoff,

4. An appeal was taken on July 9th, the complete record was filed in
the surrogate's office on September 16th, and on October 15th,
the first day of the term, the appeal was dismissed because the
appellant had not filed here a transcript of the proceedings
below. On a motion to re-instate the appeal-Held, (1) that no-
tice of the motion to dismiss the appeal was not necessary; (2)
that if appellant had needed additional time for filing his tran-
script, he ought to have applied therefor promptly. Terhune v.
Pinkney,

20

95

494

5. The proper practice in chancery is to send an issue on the legal
title to be tried at law, or to retain the bill until an action can
be brought at law to try the legal title, or until an action pending
at law for that purpose can be determined; and the court of
equity can so control the action at law that the legal question may
be decided. If the parties waive a trial at law, the court of equity
is at liberty to decide the question for itself. Freiknecht v. Meyer, 551

6. Tasto v. Klopping, 14 Vr. 448, re-affirmed. Id.,
See EVIDENCE, 2, 3; ISSUE AT LAW.

A manager was employed by the receiver of an insolvent railroad
company mainly to perform duties which the receiver himself
should have attended to. In a subsequent order, for the disposi-
tion of the proceeds of the foreclosure of a mortgage on the rail-
road, an amount was awarded to the receiver as compensation
for his services, and he was thereby directed to pay the manager
a specified portion thereof. He refused to do so, claiming that
the manager was indebted to him individually in a larger amount.

551

1

Receiver-Continued.

-Held, the indebtedness from the manager to the receiver being
admitted, that a petition by the manager for an order compelling
the receiver to pay him the amount specified should be dismissed
for want of equity. Gatziner v. Philadelphia and Atlantic City
Railway Co.,

See JURISDICTION, 2.

Reformation of Contracts.

See FRAUD, 4; INSURANCE.

Riparian Rights.

363

1. The pre-emption given by the eighth section of the riparian act
of 1860, to the riparian owners, is of grace, and not of right.
American Dock and Improvement Co. v. Trustees of Public Schools, 409

2. The thirteenth section of that act was designed for the benefit of
riparian owners who, after notice, neglected to apply for the
grant, and the grant has consequently been made to some one
else, and the rights of the riparian owner to compensation is by
the act made to depend upon whether, in law, he had such a
right or interest as would make compensation to him necessary
in order to enable the state to make the grant. Id.,

3. The legislature had the power to rescind the provision for pre-
emption, and in the case of the West Line grant it did so by the
special grant above mentioned. It had also the power to repeal
the provision for compensation. Id.,

Rules.

214-Crammer v. Atlantic City Gas and Water Co.,

215-Kirkpatrick v. Corning,
218-Demarest v. Vanderberg,

Sale.

S.

1. If a vendor conceals from the vendee some fact material to
the interest of the vendee, which is within the knowledge of
the vendor, and which it is his duty to disclose, the concealment
is fraudulent, and vitiates the sale. Keen v. James,

2. A duty to disclose exists when it expressly appears, by the lan-
guage of the parties, or is necessarily implied from the circum-
stances of the case, that one party is actually reposing trust and
confidence in the other, and the latter knows it. Id.,

409

527

527

i

i

409

Sale-Continued.

their falsity, silence on the part of the vendor is a fraudulent
concealment vitiating the sale. Id.,

527

4. When a sale of bank stock, belonging to an estate, was effected by
one of three executors through a fraudulent concealment-Held,
that the vendee could rescind the sale, and was entitled to a
decree against all the executors for re-imbursement out of the
estate, not only of the purchase-price, but also of any assess-
ments upon the stock which he had been legally compelled to
pay as shareholder. Id.,

527

Setting Aside Contracts.

See ACCIDENT, 1.

Set-Off.

See HUSBAND AND WIFE, 6; RECEIVER, 1.

Solicitor.

Under the statute authorizing the assignment of counsel to indigent
suitors, the complainant was assigned to assist the defendant in
a suit to recover from a life insurance company the amount of a
policy on her husband's life. The complainant thereupon made
an agreement with her to prosecute the claim; and if success-
ful, to receive one-half of the amount recovered, and if not suc-
cessful, to receive nothing. He did prosecute the suit, paid the
costs incurred, and recovered the amount of the policy, $1,000,
besides $339.27 interest thereon.-Held, that he was entitled to
one-half of this whole amount. Hassell v. Van Houten,

See ATTORNEY; MORTGAGE, 1; PRACTICE, 3.

Sovereignty.

If property, by reason of forfeiture, revert to the state, it alone
can take advantage thereof. American Dock Co. v. Trustees,

See EVIDENCE, 4; RIPARIAN RIGHTS, 3.

Specific Performance.

105

409

1. A court of equity may, in a proper case, decree the specific per-
formance of a contract to renew a license. Domestic Telegraph
and Telephone Co. v. Metropolitan Telephone and Telegraph Co., 160

2. Specific performance of a contract will not be decreed, unless the
contract has actually been concluded; or, if any material part of
it still rests in treaty, and remains to be settled by further nego-
tiations, equity will not interfere. Id.,

160

3. No court has power to make a contract for persons sui juris, nor to
compel them to agree with each other. Id.,

160

Specific Performance-Continued.

at all probable that the complainant may, on final hearing, be
able to convince the court that he is entitled to relief, the court
will, as a general rule, award the writ, but will refuse it in cases
where it appears that the contract sought to be enforced has not
yet been made, or, if made, that it is so incomplete or uncertain
as to be unenforceable. Id.,

5. When, on decree for specific performance, the defendant is in con-
tempt for refusal to perform, the court may give it effect by estab-
lishing the contract as if it had been executed; and by enjoining
and restraining the defendant from denying its execution and
delivery; and from defending himself in any action by denying
its execution. Wharton v. Stoutenburgh,

See FRAUD, 4; JURISDICTION, 3.

Statutes.

Where there are two statutes on the same subject, passed at different
dates, and it is plain from the frame-work and substance of the
last that it was intended to cover the whole subject, and to be a
complete and perfect system in itself, the last act must be held to
be a legislative declaration that whatever is embraced in it shall
prevail, and that whatever is excluded is discarded and repealed.
Bracken v. Smith,

Statutes of New Jersey (Private).

Camden County Clerk, P. L. of 1874 p. 280,
Newark Savings Institution, P. L. of 1847 p. 108,

Statutes of New Jersey (Public).

160

299

169

127

186

186

P. L. of 1859 р. б,

131