Volume 86 — Vermont Reports

Appeal in Chancery. Heard on the pleadings, master’s report, defendant’s exceptions thereto, and his-motion for a decree in his favor, at the September Term, 1909, Butland County, Stanton, Chancellor. Exceptions and motion overruled, and decree for the orator. The defendant excepted- The opinion states the ease. The evidence of Thomas Lynch on the former trial was admissible in favor of his administrator in this.

General Assumpsit in the common money counts. Pleas, the general issue, payment, accord and satisfaction, a plea of estoppel by election of remedies, and a plea of estoppel by judgment. Heard on demurrers to the two last pleas, at the September Term, 1911, Franklin County, Waterman, J., presiding. Demurrers sustained, and pleas adjudged insufficient. The defendant excepted. This case has been once before in' Supreme Court; see 71 Vt. 372.

Appeal in Chancery. Heard on the pleadings and findings of facts by the Chancellor at the March Term, 1911, Rutland County, Butler, Chancellor. Decree for the orators. The defendants appealed. ...The opinion states the case.

Debt against the surety on a bond given to the probate court by Joseph C. Enright as the executor of the last will and testament of Henry L. Story. Plea, the general issue. Trial by court at the June Term, 1911, Windsor County, Powers, J., presiding. Judgment pro forma for the plaintiff. The defendant excepted. The opinion states the case.

Information for adultery. Plea, not guilty. Trial by jury at the December Term, 1911, Windsor County, Miles, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted. The information charges that respondent committed adultery with one John Duling at Windsor, Vermont, on July 14, 1910, and the State claimed conviction only for an offence committed on that day.

Appeal in Chancery. Heard on demurrer to the bill, at the September Term, 1911, Rutland County, Taylor, Chancellor. Demurrer overruled, pro forma, and bill adjudged sufficient. The defendant appealed. The opinion states the case. A bill in equity will lie to restrain the taking of lands by the exercise of eminent domain under the circumstances set forth in this bill. White River Turnpike Co. v. C. V. Ry. Co., 21 Vt. 590; C. V. Ry.

Appeal in Chancery. Heard on. the pleadings and master’s report at the June Term, 1911, Bennington County, Taylor, Chancellor. Decree dismissing the bill with costs. The orator appealed. The opinion states the case. The lessor has the right to have the building in question left to cover the shaft over which it was erectedas a tenant cannot remove trade fixtures when thereby the premises would be injured, or left in a worse condition than when he took possession.

Appeal in Chancery. Heard at the September Term, 1911, Franklin County, Waterman, Chancellor, on defendants’ motion for the appointment of a master to ascertain and report the injunction damages, and for an order restoring defendants to the possession of the land in controversy. Motion granted, as recited in the opinion. The orators appealed.

' General Assumpsit. Plea, the general issue. Trial by court at the June Term, 1911, Windsor County, Butter, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the ease.

Petition for a writ of certiorari brought to the Supreme Court for Windham County at its October Term, 1911, and then heard on the pleadings. The opinion states the case.

Indictment for murder. Plea, not guilty. Trial by jury at the September Term, 1911, Chittenden County, Mall, J., presiding. Verdict, “guilty of murder in the first degree, with capital punishment.” The respondent excepted- The opinion states the case.

Appeal in Chancery. Heard on the pleadings, master’s report, and defendants’ exceptions thereto, at the March Term, 1909, Rutland County, Waterman, Chancellor. Decree for all the orators. The defendants appealed. The opinion states the case.

Assumpsit on a promissory note. Plea, the general issue with notice. Trial by jury at the June Term, 1910, Orange County, Stanton, J., presiding. Verdict and judgment for defendants, Conant and Flanders. The plaintiff excepted. The opinion states the case. Though Conant and Flanders were, prima facie, makers, they could show that they were in fact only indorsers.

Case for negligence. Plea, the general issue. Trial by jury at the December Term, 1912, Windsor County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Habeas Corpus, brought to the Supreme Court for Bennington County at its May Term, 1912, and then heard on the pleadings. The opinion states the ease.

Petition eor Mandamus, brought to the Supreme Court for Chittenden County, at its May Term, 1912, and then heard on an agreed statement of facts.

Appeal in Chancery. Heard on the pleadings and an agreed statement of facts, at the September Term, 1911, Rutland County, Miles, Chancellor. Decree dismissing bill with costs to the defendant. The orator appealed. The opinion states the ease.

Trover for promissory note. Plea, the general issue. Trial by jury at the October Term, 1911, Essex County, Butler, J., presiding. Verdict and judgment for tbe plaintiff. The defendant excepted.

Ejectment. Plea, the general issue. Trial by jury at the December Term, 1910. Caledonia County, Butter, J., presiding. General verdict for defendant, and special findings as recited in the opinion. After verdict, and before judgment, the plaintiff moved for a judgment in its favor, notwithstanding the verdict, for the following reasons: “1.

Trespass and Trover against defendant as collector of taxes for the town of Johnson. Plea, the general issue. Trial by court on an agreed statement, at the December Term, 1911, Windsor County, Miles, J., presiding. Judgment, pro forma, for the plaintiff. The defendant excepted. The opinion states the case.

Assumpsit, begun by trustee process, for the collection of taxes. Plea, the general issue. Heard on the pleadings and report of a referee, at the December Term, 1911, Caledonia County, Miles, J., presiding. Judgment for defendant. The plaintiff excepted. Besides what is stated in the opinion as to the Ide House, the referee finds that: “This property stands next southerly of that last described.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1911, Eutland County, Taylor, J., presiding. Verdict directed for defendants, and judgment thereon. The plaintiff appealed. The opinion fully states the case. It was the duty of defendants to protect the deceased by inspecting the progress of the work, observing the movement of the head of slate, and warning him when the danger became imminent.

General Assumpsit. Plea, the general issue. .Trial by jury at the June Term, 1911, Orange County, Butter, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case. This case has been once before in the Supreme Court, see 84 Vt. 277.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1911, Orleans County, Butler, J. presiding. Verdict directed for the defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.

Information charging that the respondent, without a license, represented himself to be a physician.

Case for negligence. Plea, the general issue. Trial by jury at the June Term, 1911, Orange County, Butler, J., presiding. Yerdiet and judgment for the plaintiff. The defendant .excepted. The opinion states the case.

Appeal in Chancery, Windsor County. Heard at Chambers, April 1, 1912, Fish, Chancellor, on the pleadings, master’s report, and demurrer to the bill. Pro forma decree -dismissing the bill with costs to the defendants. The orators appealed. The opinion sufficiently states the case.

General and Special Assumpsit. Plea, the general issue. Trial by court at the- June Term, 1907, Caledonia County, Miles, J., presiding. Judgment for plaintiff. The defendant excepted, and prevailed on review; 81 Vt. 101. Thereupon plaintiff took the case to the United States Supreme Court where plaintiff prevailed, 218 U. S. 664; and this is a rehearing on remand from that Court.

Appeal in Chancery. Heard at the December Term, 1910, Orange Comity, Stanton, Chancellor, on the pleadings and findings of fact by the chancellor. Decree for the orator. The defendant appealed. The opinion states the ease. It will be noticed that there is no finding, one way or the other, as to whether the defendant used this right of way under a claim of right, but his conduct was such that it showed that he did.

Petition for divorce. Heard at the December Term, 1911, Caledonia County, Miles, J., presiding. Petition dismissed for want of jurisdiction. The petitioner excepted. The opinion states the case.

General Assumpsit. Pleas, the general issue, payment, and accord and satisfaction. Trial by jury at the September Term, 19Í1, Franklin County, Waterman, J., presiding. At the close of all the evidence each party moved for a directed verdict. Verdict directed, pro forma, for the defendants, and judgment .thereon. The plaintiff excepted. The opinion states the case.

Information charging the respondent with keeping an unlicensed dog and allowing it to go at large without a collar. Plea, not guilty. Trial by court, in the city court of the city of Barre, Scott, J., on an agreed statement of facts. Judgment, guilty; and sentence thereon. The respondent excepted. The opinion states the case.

General Assumpsit. Plea, tbe general issue. Trial by jury at tbe September Term, 1911, Rutland County, Miles, J., presiding. Verdict directed for tbe defendant, and judgment tbereon. Tbe plaintiff excepted. Tbe opinion states tbe case.

Information charging that the respondent had in his possession parts of three wild deer, not billed during the open season. Plea, not guilty. Trial by jury at the December Term, 1911, Addison County, Butler, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted. The opinion states the case.

General Assumpsit. ' Heard at the June Term,-1911, Windsor County, Butler, J., presiding, on defendants’ motion to dismiss the amended declaration for that it introduces a new cause of action. Motion overruled, on the finding, from evidence outside the record, that the original and amended declarations are for the same cause of action. The defendants excepted. The opinion states the case.

Appeal in Chancery. Heard on the pleadings, master’s report, and defendant’s exceptions thereto, at the September Term, 1911, Rutland County, Taylor, Chancellor. Exceptions overruled, and decree for the orator. The defendant appealed.

Case for obstructing a private way. Plea, tbe general issue. Trial by court on an agreed statement of facts at the September Term, 1911, Franklin County, Waterman, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the ease.

Covenant. Plea, the general issue. Trial by court at the June Term, 1911, Orange County, Butler, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. The Statute 32 Hen. 8, c. 34 does not apply to covenants that do not run with the land. 1 Chitty PL, (13th Am. Ed.) 18; 1 Saund. on Pl. (2nd Ed.) 392; Kellogg v. Robinson, 6 Vt. 274; Norman v. Wells, 17 Wend. 136; Hagwr v. Buck, 44 Vt. 285; Smith’s Leading Cases, 179.

General Assumpsit on a fire insurance policy. Plea, the general issue and notice thereunder. Trial by jury at the June Term, 1910, Caledonia County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Appeal in Chancery. Heard on the pleadings, master’s report and defendant’s exceptions thereto, at the December Term, 1911, Orange County, Butler, Chancellor. Exceptions overruled, but decree dismissing the bill with costs to defendant. The orator appealed. The defendant and orator’s ward are husband and wife.

Appeal in Chancery. Heard on the pleadings, master’s report, defendant’s exceptions thereto, and its motion to recommit the report, at the March Term, 1912, Washington County, Waterman, Chancellor. Exceptions and motion overruled, and decree for the petitioner. The defendant appealed. The opinion states the case.

Trial by-court on ah agreed statement.of facts at the March Term, 1912, Washington County, Waterman, J., presiding. Judgment affirming the judgment of the probate court. The appellant excepted.

Special Assumpsit. Heard on demurrer to the declaration at the March Term, 1912, Washington County, Waterman, J., presiding. Demurrer sustained, and declaration adjudged insufficient. ' The plaintiff excepted.

<p>Appeal in Ghancery — Effect of. Motion for Appeal — Failure to Pay Entry Fee — Effect.</p> <p>The filing by the clerk of the court of chancery of a motion for appeal instantly transfers the cause to the Supreme Court, and the fact that the “entry fee,” required by P. S. 6208 to be paid to the clerk of the court before entry of the case in the Supreme Court, was not paid until after the adjournment of the term of that Court held next after the motion for appeal was filed was not ground for refusing to docket the appeal; and the adjournment of that Court before the payment of the fee did not remand the case to the court of chancery.</p>

<p>Joint Tortfeasor's — Unsealed Discharge of One — Effect.</p> <p>A sealed release of one joint tortfeasor is a conclusive discharge of all;' but an unsealed discharge of one will not operate as a discharge of all unless it appears that the payment made was received in full satisfaction.</p>

General and Special Assumpsit. Plea, the general issue with notice. Trial by jury at the October Term, 1911, Essex County, Butter, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion sufficiently states the case.

Case for alienation of .the affections of plaintiff’s husband. Plea, the general issue. Trial by jury at the September Term, 1910, Rutland County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

S. 4539, and No. 147, Act. 1910. The allegations of fact in the petition, also in the answer, are admitted to be true, and these facts are made a part of the report of the Public Service Commission. Held: or has been placed, to his use. From this report, order, and decree, the petitionee appealed.

Case for damages to goods occasioned by delay in delivering to the consignee. Pleas, the general issue and a special plea in bar. Heard on demurrer to the special plea, at the March Term, 1912, Orleans County, Taylor, J., -presiding. Demurrer sustained, pro forma, and plea adjudged insufficient. The defendant excepted. The opinion states the case.

Appear, from an order of the Public Service Commission directing the construction, maintenance, and operation of gates at a gradé crossing near the passenger station at Alburgh. The , opinion states the case.

Information charging adultery. Plea, not guilty. Trial by jury at March Term, 1912, Chittenden County, Miles, J., presiding. Verdict, guilty, and judgment thereon. The respondent excepted. The opinion states the ease.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1912, Washington County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. This ease has been twice before in the Supreme Court; 82 Vt. 230; 85 Vt. 438.

<p>Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1911, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The defendant seasonably moved, in arrest of judgment, that the general verdict be set aside, and that judgment be rendered for the defendant. Motion denied, pro forma, to which the defendant excepted. The opinion states the ease.</p>

Trespass qtjare clausum. Pleas, the general issue, and special pleas justifying under a deed and license from plaintiff’s cotenant.' Trial by jury at the December Term, 1910, Caledonia County, Butter, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. This ease has been twice before in Supreme Court, see 82 Vt. 182; 83 Vt. 35.

Information cbarging adultery. Plea, not guilty. Trial by jury at tbe March Term, 1912, Chittenden County, Miles, J., presiding. Verdict, guilty; judgment and sentence thereon. The respondent excepted. The opinion states the case.

General Assumpsit. Plea, the general issue. Trial by jury at the September Term, 1911, Washington County, Taylor, J., presiding. Yerdict directed for the plaintiff, and judgment thereon. The defendant excepted. The opinion states the case.

Case for malpractice. Plea, tbe general issue. Trial by jury at the April Term, 1911, Essex County, Hall, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. At the close of all the evidence the defendant moved for a directed verdict. Motion overruled, to which the defendant excepted. The plaintiff also brought her petition for a new trial to February Term, 1912, of the Supreme Court. The opinion states the case.

<p>Cutting Timber — Contract Terminated by Defendants — Plaintiff’s Bight of Becovery — Evidence—Sufficiency—Instructions — Exceptions—Sufficiency.</p> <p>Evidence that, without fault on plaintiff’s part, defendants told him to stop further work under a contract, which he accordingly did, tended to show that defendants forced him to abandon the contract.</p> <p>In assumpsit for cutting timber, where the trial proceeded on the theory that the timber cut on the land of an adjoining owner should he taken into account, adjusted, and treated the same as the other cutting, except as to the issue whether plaintiff cut over through his fault or that of defendants, as to which the testimony was conflicting, and there was evidence as to the damage to defendants because c!f cutting the adjoining timber improperly, and the claim that plaintiff was not ehtitled to pay for cutting that timber was first made in argument to the jury, the court properly denied defendants’ requested instruction that plaintiff could not recover for that cutting.</p> <p>In assumpsit for cutting timber, where the case was tried on the theory that the timber cut on the land of an adjoining owner, without plaintiff’s fault, should be taken into account and adjusted the same as the other timber, and plaintiff’s testimony tended to show that the cutting over the line was due to defendants’ fault, the court properly denied defendants’ requested instruction that they were entitled to retain a reasonable sum of money for their own protection in respect of defendants’ act in cutting over the line.</p> <p>In general assumpsit for cutting timber under a written contract that plaintiff claimed, and his evidence tended to show, defendants had terminated before its completion, and without his fault, the court properly denied defendants’ requested instruction that, under the contract, the pay for cutting would become due within a reasonable time after the cutting, and that it was for the jury to say what was a reasonable time, as that assumed the contract to be still in force.</p> <p>An instruction that rehearsed plaintiff’s testimony on direct examination in respect of a controlling issue, without referring to his inconsistent statements on cross-examination, in effect excluded the latter from the consideration of the jury, and was therefore erroneous.</p>

Information for adultery. Plea, not guilty. Trial by jury at September Term, 1911, Chittenden County, Miles, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted. The opinion states'the case. • The bad reputation of the partioeps for chastity was admissible regardless of respondent’s knowledge. 'Wig. on Ev., §68; Underhill Crim.

Trover for lumber. Plea, the general issue. Trial by court at the March Term, 1912, Washington County, Waterman, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

' Appeal in chancery, Rutland County, September Term, 1912, Stamton, Chancellor. Heard on the form of a final decree to be made in accordance with mandate of the Supreme Court as reported in 86 Yt. 76. From the final decree rendered the defendants appealed. The opinion states the.case.

Audita querela to set aside a judgment by default. Trial by court at tbe March Term, 1911, Orleans County, Hall, J., presiding. Judgment, pro forma, that tbe writ be dismissed with costs. The plaintiff excepted. The opinion states the case.

<p>Information charging adultery and an offence under the blanket act; but prosecution for only the latter offence. Plea, not guilty. Trial by jury at the April Term, 1912, Windham County, Fish, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted. The opinion states the case.</p>

Petition for divorce. Fully heard on the merits at the March Term, 1911, Rutland County, Taylor, J., presiding, and two assistant judges, and continued generally without any formal finding of facts.

<p>Criminal Law — Larceny—Evidence—Possession of Stolen Property — Instructions—Sufficiency—Repeal of Statute After Conviction and Pending Hearing on Respondent’s Exceptions — Effect—“Final Jtidgment’’ — Judgment on Sentence by County Court — Status After Allowance of Exceptions.</p> <p>In a prosecution for stealing two bridles, where respondent did not testify, and the only evidence against him was testimony that he disposed of the bridles to a designated person, representing that he had procured them at a specified place in exchange for intoxicating liquor, and it appeared that at some time previous to that disposal respondent had been seen on the premises of the owner of the bridles, the instruction that, if respondent disposed of the bridles with that representation as to how he came, to be possessed of them, the jury might infer from those facts, unexplained, that he obtained the bridles by felonious talcing, is not erroneous for failure to make the falsity of the representation essential to the permitted inference, where the court immediately further instructed that when property claimed to have been stolen is found in one’s possession it is incumbent on him to furnish some explanation as to how he came by it, if he would escape the inference to be drawn from the fact of possession; and that it was for the jury to say whether respondent had given a satisfactory explanation of the matter, or such an explanation as raised in their minds a reasonable doubt regarding it.</p> <p>The repeal of a criminal statute without an excepting clause ends all further proceedings thereunder, unless there has been a final judgment.</p> <p>Judgment and sentence on a verdict of guilty in a criminal case are not vacated by the allowance of respondent’s exceptions, but he may be committed in execution notwithstanding the exceptions; and so, if no error is found, the prescribed judgment of this 'Court that “there is no error in the proceedings, and that respondent take nothing by his exceptions,” is not the rendition of a new judgment, but only a direction to enforce the judgment rendered below.</p> <p>In a prosecution on an information for petit larceny, where there was a verdict of guilty, and judgment was rendered thereon and respondent sentenced to three months imprisonment, under P. S. 5756, permitting an imprisonment of not more than three months or a fine of not more than fifty dollars, and respondent’s exceptions were allowed, and execution stayed, and thereafter, by an act without an excepting clause, and which took effect before the hearing in this Court on the exceptions, P. S. 5756 was amended only so as to permit an imprisonment of six months, or a fine of three hundred dollars, or both, the information cannot be quashed for that the statute under which respondent was convicted was repealed by an act without an excepting clause, because the judgment below was a final one, and was rendered before the alleged repeal.</p>

<p>Pleading — Admission by Demurrer — Limitation—Overruling Demurrer to Plea to Jurisdiction — Granting Demurrant Bight to Beplead — Inconsistency—Discretion of Court — Bight of Court to Change Discretionary Biding.</p> <p>A demurrer to a pleading admits the truth of the challenged allegations only for the purpose of testing their legal sufficiency, and, if that question is decided against him, the demurrant may still traverse the pleading, unless precluded by some rule of procedure.</p> <p>In an action against two railroad companies for injuries sustained by plaintiff while riding as a passenger on a train operated by one defendant over the track of the other, where defendants pleaded to the jurisdiction that plaintiff at the time of the injury was, and ever since has been, a resident and citizen of Canada, and came to reside and is now residing in this State solely for the purpose of bringing this action, and the court overruled plaintiff’s demurrer to that plea, adjudged it sufficient, and held as matter of discretion that the court would not take jurisdiction of the action as presented, there was no inconsistency in thereafter allowing plaintiff to replead; and, if there was, it was but the further exercise of the discretion of the court by withdrawing a ruling made as a matter of discretion, which was proper.</p>

Replevin. Plea, tbe general issue. Trial by jury at the April Term, 1912, Windham County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the ease.

Assumpsit. Plea, the general issue. Trial by jury at the' April Term, 1912, Windham County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1912, Franklin County, Butler, J., presiding. 'Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Plaintiff’s voluntary intoxication and his admitted conduct severally amounted to contributory negligence. Cassidy' v. Stockbridge, 21 Vt. 391; Thompson on Negligence, Par. 96 and 340; Strand v., Chicago II. Co., 67 Mich. 380; 34 N. W. Rep. 712; Roberts Vt.

Appeal in Chancery. Heard ou tbe pleadings and master’s report at the September Term, 1912, Franklin County, Fish, Chancellor. Decree for the orator. The defendant appealed. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the June Term, 1912, Windsor County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Plaintiff was guilty of contributory negligence on her own testimony as to her conduct, which amounted to a judicial admission and is conclusive. Smith v. Boston Elevated By. Go., C. C. A. First Circuit, 184 Fed. 387; Feary v. Metropolitan St. By.

Trover for an automobile. Plea, tbe general issue. Trial by court at the September Term, 1912, Windham County, Butler, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Book Account. Heard in vacation after tbe June Term, 1911, Bennington County, Taylor, J., on tbe report of tbe commissioner appointed to take the disclosure of the trustee. Judgment discharging tbe trustee’s executrix with costs. Tbe plaintiff excepted. This is an action of book account in which R. A. Dixon was summoned as trustee. It was brought before a justice of the peace in February, 1903. Judgment was rendered against the principal defendant, also against the trustee.

Trespass for assault and battery. Pleas, the general issue and three special pleas in justification. Trial by jury at the April Term, 1912, Windham County, Fish, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. At the time in question the plaintiff was a resident of Bellows Falls, an incorporated village in the town of Rockingham, and the defendant was the chief of police in said village.

Disbarment proceedings, on complaint of the Attorney General. Heard at the November Term, 1912, of the Supreme Court for Orleans County, on the report of the committee appointed to hear the case.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1912, Windham County, Butler, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Case for negligence. Heard on demurrer to the declaration, in vacation after April Term, 1912, Windham County, Waterman, J. Demurrer overruled and declaration adjudged sufficient. The defendant excepted. The opinion sufficiently states the pleadings. If the plaintiff did not go to the milk station in the line of his duty he was a trespasser.

Assumpsit. Heard on demurrer to the special count of the declaration, at the April Term, 1912, Windham County, Fish J.; presiding. Demurrer overruled, to which the defendants excepted; and thereupon it was agreed that, without prejudice to the above exception, the facts should be taken to be as stated in the special count, and on that agreed statement of facts judgment was rendered for the plaintiff to recover $2,000 and costs, to which the defendants excepted.

<p>A delegated authority cannot, without permission, be delegated by the person to whom it is given, if that authority involves a trust and requires the exercise of judgment and discretion in its execution.</p> <p>The power to “constitute towns, boroughs, cities, and counties,” vested in the Legislature by the Constitution, is essentially a trust, requiring the exercise of judgment and discretion in its execution, and so non-delegable, and therefore No. 115, Acts 1910, giving the Public Service Commission authority to determine the plan and frame of government of proposed villages and what powers and functions shall be exercised, is invalid as an unauthorized delegation of legislative power; though the possible powers and functions of such villages are specifically limited by the act.</p> <p>§§ 12, 13, No. 115, Acts 1910, providing for the taking of land by villages under the power of eminent domain, are separable from the other provisions of the act, which are invalid as an unauthorized delegation of legislative power, and so the invalidity of these does not affect the validity of those.</p>