the jury believe the facts testified to, the plaintiff is entitled to a verdict, since such is not a binding instruction.

Appeal from court of common pleas, Berks county.

Action of ejectment by John H. Daubert against the Pennsylvania Railroad Company. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed.

John H. Daubert, the plaintiff, owning about 3 acres of mountain land, with a small tenement and other buildings, worth altogether about $170, executed an agree ment under seal, dated January 30, 1885, reciting that "for and in consideration of the advantages to be derived from the location and construction of the railroad hereinafter mentioned, and of the sum of one dollar to me in hand paid by the Reading and Pottsville Railroad Company at or before the execution hereof, the receipt whereof is hereby acknowledged, and of the further sum of one hundred and seventy-four dollars, lawful money, to be paid to me by the said company upon the execution and delivery of the deed of conveyance hereinafter mentioned, do hereby ✦✦✦ grant to the said company, their saccessors and assigns, the privilege of surveying, locating, constructing, and using a railroad upon such line or route, and with as many tracks, as they may deem proper, through, over, and upon a certain tract or parcel of land belonging to me, situate," etc. "And I do also

reason of the taking and using of the said land for said railroad, or by reason of the construction, maintenance, and operation of the said railroad on and over said tract or parcel of land; * and the said company also agrees to protect the spring of water on said strip of land, that it may be used by the said Daubert as fully and convenient as it now is; also, the usual crossing required by law."

tions, admitted the offer, and this forms a specification of error.

Cyrus G. Derr, for appellant. Edwarȧ H. Shearer and Richmond L. Jones, for appellee.

PER CURIAM. In response to plaintiff's testimony in chief, the defendant gave in evidence the agreement of January 30, 1885, between plaintiff and the Reading & Pottsville Railroad Company in connection with agreement of consolidation and merger, October 7, 1885, between that company and the Pennsylvania Schuylkill Valley Railroad Company, and also lease of last-named company, December 1, 1885, to the Pennsylvania Railroad Company, defendant, for all said lessor's railroads, etc., in the counties of Philadelphia, Montgomery, Chester, Berks, and Schuylkill, duly recorded, etc., and then rested. It was claimed by defendant that said firstmentioned agreement was, in effect, “a present grant to the railroad company, its successors or assigus, of the privilege of surveying, locating, constructing, and using their railroad upon the plaintiff's land," etc.; and in its eighth and ninth points it requested the learned president of the common pleas to charge: “(8) An action of ejectment will not lie for the violation of any of the covenants made and to be performed by the railroad company under the agreement of January 30, 1885. (9) Under all the testimony in this case, the verdict must be for the defendant. He rightly held that the agreement was merely a contract to convey, and not a conveyance; that the legal title was still in the plaintiff; and he virtually instructed the jury, pro forma, that, under our system of administering equitable principles in common-law actions, plaintiff had a right to maintain ejectment upon his legal title for the purpose of enforcing payment, by means of a conditional verdict, of the purchase money due him, etc. Cook v. Trimble, 9 Watts, 15; Krebs v. Stroub, 116 Pa. St. 405, 9 Atl. Rep. 469. He accordingly negatived the niuth point, and reserved the question of law raised by the eighth point. That question he afterwards rightly ruled in favor of plaintiff, and thereupon judgment was entered in his favor on the conditional verdict returned by the jury, and subsequently so molded by the court as to require the deed, when delivered, to “be accompanied with the release from all claims and damages, as per agreement." The conditional verdict, as thus molded by the court, preserves all the equities of the defendant company as terre-tenant under the Read

ing of, a conveyance; that the plaintiff's title, from an inspection of his own deed, appeared not to be clear of incumbrances; that, the plaintiff's land lying all upon one side of the railroad, he was not enti. tled to the usual crossing; that the payment of the $174, the protecting of the spring, and the making of the crossing were not conditions annexed to the grant of the right of way; and that, therefore, ejectment would not lie for their enforcemeat. The court overruled these objec

conditions attached to the verdict are for its protection and the preservation of its rights, if it chooses to avail itself of them. Nothing, save compliance with the terms of the contract, is required. Less than that would be unjust and inequitable to the plaintiff. He is entitled, upon compliance with his part of the contract, to receive the purchase money, and to the performance, by the railroad company, of its covenants; and the court below will see that no injustice is done to either party.

The defense in this case bas, at least, the appearance of being obstructive, rather than meritorious.

"

It is a mistake to say that the court gave binding instructions to the jury. There was practically no onflict of testimony; and, as the learned judge said in his charge, "there seems to be no material dispute as to the facts. He accordingly said to the jury that, if they believed the facts testified to, the plaintiff was entitled to a verdict. There was no error in this, nor do we find any error in the record that calls for a reversal or modification of the judgment. The 60 days within which the defendant is required, by the verdict, to comply with the conditions thereto annexed, are to be computed from this date. Judgment affirmed.

FRISBIE et al. v. FELTON. (Supreme Court of Vermont. Franklin. March 7, 1893.)

LIABILITY OF FIRM FOR ACTS OF AGENT.

A manufacturing company employed O. to assist it in making some repairs in its works, and authorized him to purchase some materials therefor. To some extent O. directed the men employed in making repairs. F., believing O. to be, as he represented, a member of the company, delivered to him a car load of lime, which he used himself. It was delivered by F's clerk, to whom O. said that he would send his check for it. O. was not a member of the company, which was ignorant of O.'s purchase and his representations as to being a member of the firm. Held, that the company was not liable for the lime.

Exceptions from Franklin county court; Start, Judge.

Assumpsit by Frisbie, Rogers & Co. against Lyman H. Felton to recover the amount of a debt owed by defendant. There was judgment for plaintiffs disallowing the amount of a set-off, and defendant excepts. Exceptions overruled.

H. A. Burt and D. W. Steele, for plaintiffs. Farrington & Post, for defendant.

TYLER, J. To understand the force of the defendant's exceptions, it is necessary to state the material facts found by the referee, which are as follows: In May, 1891, five persons in New York city formed a copartnership, under the name of Frisbie, Rogers & Co., for the purpose of manufacturing lime at Highgate Springs, in this state, and selling the same in New York and other places. In that month, Frisbie, who was a partner and the manager of the business, went to Highgate Springs, and began to repair the works preparatory to commencing business. A few days later, II. S. Osborn went to the works, and remained two or three weeks, and assisted in getting the business started, and, at Frisbie's request, "purchased materials to be used in the works, and made contracts for and in behalf of and in the name of the firm in buying or contracting for the materials, and to some extent gave directions to the men employed." All the members of the firm were straugers to the defendant and to the people in that vicinity. In what Osborn did he acted in such

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a manner as might induce the belief that he was personally interested in the business, either as partner in or special agent of the firm. He claimed to the defendant and others that he was a partner, though he was not one in fact, and the firm did not know that he had claimed to be one until the next November or December. His wife was a member of the firm. The defendant was a manufacturer of lime at the same place. Between June 1st and 15th of that year, Osborn met him in the cars, and asked him if they could purchase two or three carloads of lime of him if they should require it, to which the defendant replied that they could, and he instructed Ward, who was his clerk and the supervisor of his lime works, to let them have it if they ordered it. On June 15th Osborn ordered a car load of lime through Ward, and promised to send his check for it in 10 days. The order was filled, and the lime shipped to Osborn, in New York. The purchase was made by Osborn for himself, to supply his own trade. The defendant was not present when the lime was ordered, but from the acts of Osborn in assisting the firm, as stated, his claiming to be a member thereof, and from his conversation in the cars, the defendant was led to believe that he was a partner, and, when he learned of the shipment, considered the sale as made to the firm. The plaintiffs had no benefit from or interest in the lime, in no way authorized its purchase, and had no knowledge at the time it was ordered that the defendant claimed to hold them liable for it. The plaintiffs had an undisputed demand against the defendant, and the defendant had a demand against the plaintiffs which they did not contest. The controversy was whether the defendant should also be allowed $80 for the car load of lime.

Upon the facts reported, the defendant was not entitled to be allowed this item. Osborn was employed by the plaintiffs for the special purpose of assisting them in starting their works, and had no authority from them beyond what was incident to that employment. He was not held out by them as a partner or special agent, and his representations that he was a partner emanated wholly from himself, and were made without the plaintiffs' knowledge. Furthermore, it did not appear that Osborn made the purchase on the plaintiffs' credit. It seems to have been made on his own, and the plaintiffs did nothing to lead the defendant to suppose that the sale had been made to them. | The defendant requested the referee to find (1) whether Frisbie, Rogers & Co. had knowledge of the acts of Osborn in and about the business of the firm; (2) whether the conduct of the firm and of Osborn was such that the defendant was justified in believing them to be partners; (3) whether, from the evidence introduced, the defendant was justified in giving credit to the plaintiffs for the car load of lime. The first request is fully answered in the report. There is nothing in the report to show that the defendant was justified in giving the plaintiffs credit for the lime, and there is nothing presented to this court by affidavits or otherwise to show

that there was evidence before the referee to warrant a recommitment of the report for a compliance with the second and third requests. So far as appears, the referee has found and reported all the facts which the evidence justified. No acts of plaintiffs are shown in the report to justify the defendant in believing that Osborn was a partner. The court below properly overruled the exceptions and the motion to recommit, and rendered judgment for the plaintiffs for the larger sum named in the report; and that judgment is affirmed.

1. In partition proceedings, where the title of the parties had its origin in a mortgage from one B., in which they were equally interested, it appeared that, before foreclosure, B. quit claimed his equity in an undivided half of the land to defendant, who commenced partition proceedings against B. and plaintiff, whose interest was that of a mortgagee, but judgment was rendered for partition between B. and de fendant, only. Plaintiff afterwards foreclosed the mortgage, and became the owner of an un divided half of the land, B. having failed to redeem from plaintiff. Held, that plaintiff's interest in the land was not affected by the partition between B. and defendant.

2. Plaintiff did not acquiesce in the partition between defendant and B. by building her part of the division fence, since, when called on to do so, she notified defendant that she was about to begin a partition suit.

Exceptions from Franklin county court; Munson, Judge.

Petition by Margaret B. Sowles, trustee of Susan B. Sowles, against Benjamin F. Rugg, for partition. To a judgment pro forma, dismissing the petition, the petitioner excepts. Reversed.

E. A. Sowles and H. A. Burt, for petitioner. Farrington & Post, for defendant.

ROSS, C. J. On the facts found by the trial court, the petitioner is entitled to a judgment that partition of the described premises be made, unless such right is defeated by the partition made, on the petition of the defendant, of 90 acres, parcel of the described premises. The facts found in regard to the partition of the 90 acres on the petition of the defendant are substantially as follows: The title of the plaintiff and defendant to the 90 acres had its origin in a mortgage from William Buck, in which they were equally interested. The defendant took a quitclaim from Buck of his right of redemption in one undivided half of the 90 acres; and while the plaintiff's interest in the other undivided half was that of mortgagee, and while Buck still had the right of redemption thereiu, the defendant brought a petition for partition of the 90 acres against Buck and the petitioner. When the petition came before the court, by consent, judgment that partition be made between the defeudant and Buck was rendered, and

commissioners were appointed, and partition was made between them. The plaintiff was made defendant to that petition, but no judgment was ever rendered, nor partition made between plaintiff and defendant. The commissioners appointed to make that partition gave the plaintiff due notice, through her attorney, of the hearing before them, but the plaintiff did not attend and took no part in the hearing. She was under no duty to attend nor to take part in that hearing, because the judgment of partition rendered did not run against her, and could not conclude her. The petitioner has now foreclosed the mortgage against Buck. By it she is entitled to an undivided half of the 90 acres. It is contended that the partition between defendant and Buck has concluded the petitioner, and severed and set out the petitioner's right in the premises. At the time of that partition, Buck did not and could not represent, nor did he have power to limit or modify the rights now held by, the petitioner. He had long before conditionally conveyed those rights by the mortgage deed which she has now foreclosed against him. He then stood upon his own right,-that of a mortgagor whose right to redeem had not been extinguished. The partition between him and the defendant bound his right to redeem. If he redeemed, it bound all to whom he might thereafter convey his interest. But, failing to exercise his right to redeem, the right he had conveyed to the petitioner by the nortgage was absolute, and unaffected by the partition made between him and the defendant. It is not necessary to consider whether that partition would have bound the plaintiff if the judgment had been against her, also; for now the plaintiff stands upon a right-conditional then, absolute bow-not then in Buck, because which he had no power to represent or conveyed by his deed of mortgage, and

bind.

The defendant further contends that the plaintiff has so acquiesced in the partition made between him and Buck that she is bound thereby. The defendant called upon her to have the division fence made necessary by the partition divided between bim and the plaintiff, after Buck's right of redemption was foreclosed. When so called upon, she notified the defendant she was about to bring this petition for partition. Although, for the purposes of occupation, she built her part of the fence, yet, when this notice had been given, the defendant could not have understood that she acquiesced in the partition made between him and Buck. Neither could he have been misled by what she did in building the fence, or occupation. Neither is it found that the defendant, in fact, has done or omitted to do anything in regard to the premises by reason of her having built a portion of this fence, and occupied the portion set off to Buck. No question is made but that the remaining parcel of the described premises should be divided, in connection with the 90 acres. Judgment reversed. Judgment that partition be made as prayed for, and cause remanded.

STATE v. HOUGHTON. (Supreme Court of Vermont. Grand Isle. March 3, 1893.) VIOLATION OF FISH LAWS-POWER OF FISH WARDEN-ENTRY OF COMPLAINT.

By R. L. § 3871, as amended by Act 1890, No. 58, fish wardens are given power to arrest within their county and on view persons found violating the laws for the preservation of fish, and to make complaints and prosecute them for such offenses; and by Laws 1886, No. 74, fish wardens have authority to prosecute for violation of the fish laws in their own towns, and are made complaining officers for such of fenses committed in such towns. Held, that where an alleged violator of the law is not arrested on view, and the violation is not within the warden's own town, the latter has no authority to enter a complaint.

Exceptions from Grand Isle county court; Start, Judge.

Complaint against George F. Houghton for an alleged violation of the fish laws. An appeal was taken from a judgment of a justice of the peace, and a motion to dismiss and a demurrer to the complaint entered. The motion and demurrer were overruled, and Houghton excepts. Reversed.

The complaint was signed by one H. P. Fisher, who made it as "fish warden for the state of Vermont, and within and for the county of Grand Isle," and it alleged that the respondent, "at Alburg, in said county of Grand Isle," did take and have in his possession certain fish in violation of law. The only question raised by the motion and demurrer was whether Fisher had authority to make the complaint.

Wilson & Hall and Jed P. Ladd, Jr., State's Atty., for the State. H. A. Burt and D. G. Furman, for respondent.

had

TYLER, J. By section 8871, R. L., fish wardens appointed by selectmen power to arrest within their county, on view, persons found violating the law for the preservation of fish, to take them immediately before the proper court or mag. istrate, make complaint against and prosecute them for such offenses. This section was amended by No. 117, Laws 1882, so as to give fish wardens, so appointed, power to arrest on any of the waters, public or private, of this state, or on the waters of Lake Champlain, or on the shores thereof, persons found violating that law, and to prosecute such offenders before the proper tribunal. Section 3871 was again amended by No. 73, Laws 1884, so as to make it compulsory upon selectmen to appoint fish wardens in their respective towns. While both these amendments enlarge the power of these officers in respect to making arrests, and continue their authority to prosecute, they expressly take away their anNo. 129, thority to make complaint. Laws 1888, conferred upon the fish commissioners authority to appoint temporary fish wardens, who should have the same powers that were possessed by those officers when appointed by selectmen under section 3871, R. L., as it then stood amended. In 1890 section 3871 was further amended by Act No. 58, which gave

TOWN OF EAST MONTPELIER v. TOWN OF MONTPELIER.

(Supreme Court of Vermont, General Term. Feb. 24, 1893.)

SETTING ASide Judgment by DefauLT-POWERS OF COUNTY COURT-REVIEW ON APPEAL.

1. Under R. L. § 1428, providing that a county court may, on petition of the aggrieved person, set aside a judgment of a justice of the peace entered by default, when such person has been unjustly deprived of his day in court by mistake, the action of the county court in setting aside such a judgment is not reviewable on appeal, where such court finds the fact of a mistake on the part of the petitioner.

2. Whether the mistake was of such a character with respect to negligence as justified the county court in setting aside the judgment was wholly within such court's discretion. Munson, J., dissenting.

Exceptions from Washington county court; Thompson, Judge.

Petition to the county court by the town of East Montpelier to be allowed an appeal from a judgment of a justice of the peace rendered by default in an action between Montpelier and petitioner. From a judgment allowing the appeal, petitioner excepts. Affirmed.

J. H. Senter, for petitioner. S. C. Shurtleff, for respondent.

TYLER, J. This was a petition to the county court, under R. L. § 1428, to be allowed an appeal from the judgment of a justice of the peace rendered in default. This section provides that the county court may, by its discretion, set aside such judgment when a party has been unjustly deprived of his day in court by fraud, accident, or mistake, and hear and determine the action, etc. The exceptions state that the court heard the evidence and found the facts "which appeared by