prove it? Mr. Sooy: He afterwards says, refreshing his memory from that affidavit, he can now say it was served on that date. The Court: That escaped me."

of the service of said notice, and has not since, performed said work in such manner as to entitle him to any payment by said contractors, and that said notice is in other respects informal, defective, and invalid as against the lien of this defendant upon said fund." Maginnis filed an answer to this cross-bill, in which he distinctly asserted the service of a proper stop notice upon Ludy on May 12, 1905, for $619; that afterwards, and within five days thereafter, Larsen & Son served written notice upon said Maginnis to establish his claim by judgment; that, in pursuance thereof, Maginnis instituted suit against Larsen & Son in the Atlantic county circuit court; that the suit was defended; and that the trial resulted in a verdict in favor of Maginnis for the sum of $619, besides interest to date, and that judgment was entered upon the verdict for the sum of $647 and costs.

Upon the hearing before the learned Vice Chancellor, the complainant, Ludy, testified that the Maginnis notice was served upon him, and identified a copy thereof, which is dated May 12, 1905. Being asked, "Q. Do you remember when that notice was served on you?" he answered: "I don't remember anything except it says here May 12, 1905." He testified, however, without objection, that at the time of the filing of his bill of complaint he swore that May 12th was the date on which he received the notice. Being afterwards examined respecting a notice signed by one Gould, dated May 29, 1900, and ask ed if that notice was served upon him upon the day of its date, he answered: "I don't know any more than what I see here. All these notices were served on the dates they were marked." At this point counsel for the Atlantic City Lumber Company which was the only party opposing or interested in opposing the claims referred to, made the following statement to the court: "He has already sworn through the bill, as I understand it. It has been gone through here once. If your honor please, that these papers were served on the dates as designated therein. That won't be required again. The Court: I put it to counsel to consider whether that is proof. You produce a witness for the purpose of proving the date on which a notice was served, and, in order to prove it, you call his attention to the fact that he

From the entire record, we think it clear that counsel for the lumber company intended to concede, and was understood by opposing counsel to concede, that sufficient proof had been made as to the dates of serving the notices in question, and that it was to be taken as proving (inter alia) that the Maginnis claim was served upon Dr. Ludy on May

that concession, and, at any rate, is entitled to the benefit of it, as settling in his favor the fact and date of the service.

The learned Vice Chancellor also expressed doubt whether the evidence showed that Maginnis completed his contract with Larsen & Son before his stop notice was served upon Ludy, and whether the claim made by him in the stop notice was not for a larger sum of money than was actually due from Larsen & Son to him. It appeared, however, that about two months after the service of that notice he commenced an action at law in the Atlantic county circuit court against Larsen & Son for the recovery of the same sum of money mentioned in the stop notice, that a plea was interposed by the defendants in this action, and that a trial by jury resulted in a verdict and judgment in favor of Maginnis for the entire amount of his claim. The record of this judgment was introduced in evidence upon the hearing before the Vice Chancellor, counsel for the Atlantic City Lumber Company making no objection to its admission, but contending that it was not binding upon the lumber company because that company was not a party to the action. There is no question that whatever was due to Maginnis when the action at law was commenced was due when his stop notice was served for the evidence upon the hearing in chancery shows beyond controversy that whatever he did about the performance of his contract was done before the service of his stop notice. As against Larsen & Son, therefore, the judgment conclusively settles in favor of Maginnis both points upon which the learned Vice Chancellor doubted.

The question is, What is the effect of the judgment upon the Atlantic City Lumber Company? Under the peculiar facts of the present case, we are not called upon to consider whether in ordinary circumstances a judgment at law recovered by stop notice claimant against contractor is conclusive upon the owner or upon subsequent claimants (see Taylor v. Wahl, 69 N. J. Law, 471, 55 Atl. 40); for the evidence shows, and it is not disputed, that the lumber company, with the consent of Larsen & Son, undertook and conducted the defense of the Maginnis suit, employing the attorney and paying the expenses of the trial, including the expenses of

missioners eight per cent. upon the expense of extending the water main." Thereafter the defendants signed the following document: "Having the welfare of the town at heart, we, citizens of Claremont, stockholders of Sullivan County Fair Association, and others, do hereby agree to guarantee the 8 per cent. required by the town to extend the water main from Draper corner, along Maple avenue, to the Sullivan County Fair Association grounds and Pinehurst, so called; this guaranty to last only until rental of said main shall pay 8 per cent." This offer was accepted by the town, and the extension was made. The annual rental has been less

than 8 per cent. of the cost of the extension, and the defendants refuse to pay the difference. The prayer of the bill is for a decree reforming the contract so that it shall read "eight per cent. a year in any one year," and for a decree for the unpaid deficiency. Hosea W. Parker and Ira G. Colby, for plaintiff. Hurd & Kinney and Edward E. Leighton, for defendants.

PEASLEE, J. [1] The reformation pray

Agreed case between Rockingham County and Moses Brown. Case discharged.

Charles H. Batchelder, for plaintiff. Ernest L. Guptill, for defendant.

WALKER, J. This is an agreed case, which makes no provision for a final order or other disposition of the case, after the questions of law supposed to be involved are determined. It is not advisable for the court, upon such a case, unassisted by brief or argument from either side, to seek to discover the questions of law that may be involved and to decide them, in the absence of any intimation what disposition shall be made of the case, or what effect such a decision is expected to have upon the determination of the controversy. Conn. Valley Lumber Co. v. Monroe, 71 N. H. 473, 52 Atl. 940.

Case discharged. All concurred.

THYNG v. HUSSEY. HUSSEY v. THYNG.

(76 Ν. Η. 572)

April 4, 1911.)

PROMISE-CONDITIONAL PROMISE.

[2] No ground is shown upon which the bill can be maintained as a more convenient remedy than a suit in assumpsit against the signers of the agreement. In such a suit the plaintiff will be entitled to a judgment and execution against each defendant for the

whole amount due. It is not apparent wherein equity could give a remedy more ample or more efficient. Davison v. Davison, 71 N. Η. 180, 51 Atl. 905.

[3] Whether the plaintiff should be permitted to amend by making this proceeding a suit in assumpsit is a matter for the consideration of the superior court.

Case discharged. All concurred.

(76 Ν. Η. 571)

ROCKINGHAM COUNTY v. BROWN. (Supreme Court of New Hampshire. Rocking

ham. April 4, 1911.) SUBMISSION OF CONTROVERSY (§ 7*)-REQUISITES OF SUBMISSION.

The court will not, unassisted by brief or argument, and without intimation of what disposition shall be made of the case, or what effect a decision is expected to have on the de

termination of the controversy, seek to discover the questions of law involved and decide them, on an agreed case making no provision for final order or other disposition, after determination of the questions of law supposed to be

involved.

[Ed. Note.-For other cases, see Submission of Controversy, Cent. Dig. § 8; Dec. Dig. §

A statement by defendant to plaintiff that he thought the balance between them was in his favor, but he would look it up in his books, and would pay the amount claimed by plaintiff, if he found it otherwise, was a conditional promise to pay, and could not be relied on as a new promise to take the debt out of the statute of limitations, in absence of a showing that defendant looked up his books and found the balance in plaintiff's favor.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 604-609; Dec. Dig. § 149.*]

2. APPEAL AND ERROR ($289*) - EXCEPTIONS

SUFFICIENCY.

Pub. St. 1901, с. 204, § 11, permits one aggrieved by a ruling to except thereto, and provides that, after the exceptions are reduced to writing and signed, they shall be a part of the record, Section 12 provides that such bill of exceptions may be entered by the excepting party upon the docket, and the questions arising thereon shall be considered upon writ of error or other process for bringing the same before the whole court. Held, that the question of the correctness of a ruling that certain evidence showed a new promise by defendant to pay a debt was properly raised for review by exception to the ruling, without moving to set aside the verdict, which depended on the correctness of the ruling, as against the evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1691-1696; Dec. Dig. § 289.*]

Exceptions from Superior Court, Belknap County; Pike, Judge.

Actions by Charles E. Thyng against John P. Hussey and by John P. Hussey against Charles E. Thyng. Verdict for plaintiff in each suit, and cases transferred from superior court on exceptions by Hussey. ExcерThe two actions were tried together, and a verdict found for Thyng in his suit for $615.34 and for Hussey in his suit for $410.13, and execution ordered to issue for $205.21, the balance due Thyng. In the first suit there was a plea of the statute of limitations as to items amounting to $269.20 not accruing within six years of the date of the writ. The only evidence of a new promise was that Hussey said he thought the balance was in his favor, but he would look it up in his books, and if he found it otherwise he would pay. None of the disputed items appeared on his books. Subject to exception the court ruled that these words constituted a new promise and included the items in the verdict.

Stephen S. Jewett, for Thyng. Napoleon J. Dyer and Charles B. Hibbard, for Hussey.

PEASLEE, J. [1] The case is not distinguishable from Rossiter v. Colby, 71 N. H. 386, 52 Atl. 927. The promise was a conditional one, and Thyng does not bring himself within its terms.

[2] His claim that the question has not been properly raised, because there was no motion to set the verdict aside as against the evidence, cannot be sustained. The presiding justice had ruled (subject to exception) that the evidence showed a new promise. That ruling was the law of the trial, and if it was correct the verdict was properly found. The question of the soundness of the ruling was properly saved (P. S. 1901, c. 204, §§ 11, 12), and this was all that was necessary to preserve the rights of the parties. Batchelder v. Railway, 72 N. H. 329, 56 Atl. 752.

The judgment for Thyng should be reduced to $346.14, and execution awarded to Hussey for the balance due him of $63.99, with interest from the date of the writ.

Exception sustained. All concurred.

(76 Ν. Η. 54)

KINDELLAN v. MT. WASHINGTON
RY. CO.

(Supreme Court of New Hampshire. Coos. Feb. 7, 1911.)

1. MASTER AND SERVANT (§ 217*)-INJURIES TO SERVANT-NEGLIGENCE OF MASTER.

Where an employé was fully informed as to the dangers of using a certain appliance in his work, the employer was not negligent in permitting him to use it.

[Ed. Note.---For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec: Dig. § 217.*]

2. MASTER AND SERVANT (§ 217*)-INJURIESNEGLIGENCE.

Plaintiff, a section hand, was working on top of a mountain up which a railroad ran, and was injured while sliding down the mountain from work in the evening on a slide board, by another employé running into him from behind on a similar board. All the men who used slide

boards to descend had been instructed in their use and were familiar with the dangers attending their use, knew the necessity of keeping a reasonable distance apart, and going slowly, and were familiar with the route, plaintiff having used the board about 25 times, and the employé, who ran into him, about 20 times, before the

accident. There had been three or four collisions in using slide boards within the past 20 years. Held that, since plaintiff was familiar with the dangers attending the use of slide boards, the company was not negligent in permitting them to be used by employés so as to be liable for plaintiff's injuries.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]

3. MASTER AND SERVANT (§ 129*)-INJURIESPROXIMATE CAUSE-INCOMPETENCY OF FORE

MAN.

Where plaintiff's foreman told another section employé not to go down the mountain on which they worked on a slide board, but such employé disobeyed his orders and did go, running into and injuring plaintiff, who had gone ahead of him, on a slide board, no incompetency of the foreman could have contributed to plaintiff's injuries.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]

4. MASTER AND SERVANT ($_276*)-INJURIESACTION-SUFFICIENCY OF EVIDENCE.

In an action against a railroad company for injuries to a section hand while riding down the mountain grade on a slide board attached to the track by being run into by another section hand on a board, evidence held not to sustain a finding that it was the other employé's custom to descend the mountain on the train on wet nights. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 276.*] 5. MASTER AND SERVANT (§ 280*)-INJURIESACTION - SUFFICIENCY OF EVIDENCE - AsSUMPTION OF RISK.

In a section hand's action for injuries sustained while riding down a mountain on a slide board fixed to the track by being run into by another employé riding on a slide board, evidence held to show that plaintiff knew and appreciated the danger, so as to have assumed the risk.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. § 280.*]

6. CARRIERS (§ 240*) - PASSENGERS - EXISTENCE OF RELATION.

Plaintiff was employed as a section hand; the crew working on the top of a mountain in the daytime and descending in the evening after the day's work was done. While the men sometimes descended on a train, they were also furnished slide boards, which were attached to the rails, and on which they descended by gravity. Held, that plaintiff was not a passenger in descending on a slide board; his ride down the mountain being a mere incident to his employment.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 976; Dec. Dig. § 240.*]

Transferred from Superior Court, Coos County; Chamberlin, Judge.

Action by Michael J. Kindellan against the Mt. Washington Railway Company. Verdict for plaintiff, and case transferred from the Superior Court on exceptions by both parties. Verdict set aside, and judgment rendered for defendants.

which is the correct statement of the legal principle whether it is based on assumption of risk or absence of duty-for the result is the same in either event. If, then, the jury were not warranted in finding that the plaintiff was not fully informed as to the dangers pertaining to the use of slide boards, the

ed. To this instruction the plaintiff excepted.

1

BINGHAM, J. This action is brought to recover damages for an injury which the plaintiff received while in the defendants' employment as a section hand and general helper on the Mt. Washington Railway. The principal questions arise on the defendants' motions for a nonsuit and a verdict. At the time the plaintiff received his injury he was riding on a slide board over the defendants' railway from the summit to the base of Mt. Washington, and was run into by a fellow employé who was following him on a slide board. The plaintiff's contentions are that the defendants were negligent (1) in permitting the sectionmen to use slide boards at all, and (2) in putting the foreman, who he says was incompetent, in charge of the men if they were to use slide boards; and that he himself was in the exercise of due care and did not assume the risk of being injured. [1] In Leazotte v. Railroad, 70 N. H. 5, 6, 45 Atl. 1084, 1085, it is said: "A servant assumes the risk arising from all the ordinary dangers of his employment, of which he either knows or might have known by the exercise of due care; and this includes any risk arising from the negligent performance of the master's duties, if the servant knows of this danger and voluntarily remains in the master's employment." In more recent cases this statement of the rule has been modified somewhat; the view being that if the servant knows and appreciates the dangers to be encountered in the conduct of the master's business, arising from the nature or condition of the instrumentalities or the methods employed, as to him it is not negligent for the master to make use of such instrumentalities or methods; that the master owes the servant no duty as to dangers of which he is fully informed, and may perform his duty to the servant as to dangers of which he is ignorant either by fully informing him of them, or by perfecting or dispensing with the instrumentalities or methods from which the dangers arise. Bouthet v. Company, 75 N. H. 581, 78 Atl. 650; Cooley v. Company, 75 N. H. 529, 77 Atl. 936; Manley v. Railway, 75 N. H. 465, 76 Atl. 81; Willis v. Company, 75 N. H. 453, 75 Atl. 877; Deschene v. Company, 75 N. H. 363, 74 Atl. 1050; Kelland v. Company, 75 Ν. Η. 168, 71 Atl. 947; Bennett v. Company,

and on July 17th, when the accident occurred, had worked for them about 10 weeks. The first week he was employed in unloading wood at the base of the mountain. From that time on he worked at various points on the railway; the last of his work being at the summit, rebuilding the tracks that were destroyed when the Tiptop House was burned and removing the débris caused by the fire in the destruction of the building. Throughout his employment he and the other members of the crew boarded at the base of the mountain. Their labors began at 7 o'clock in the morning and ended at 6 o'clock at night. They left the base on the work train at 7 o'clock in the morning to go up the mountain, taking their dinners with them. This train was made up of a flat car and an engine. The passenger trains began to run June 29th. Down to that time the work train remained on the mountain until a quarter of 5 in the afternoon, when it returned to the base.

About a week before June 29th, the foreman instructed the men to get out the slide boards to practice on, as they would have to use them when the passenger trains came on. Before this they had gone down the mountain at night on the work train. The crew then consisted of John Camden, Joe Meaney, Patrick Maloney, Steve Meaney, Kindellan, and one or two others. All of the men, except Steve Meaney, procured slide boards and came down on them that week ahead of the work train. After that they left the summit as a rule at half past 5. Steve Meaney came down on a slide board two or three times before June 29th. On that day two or three of the men left the track crew and worked as engineers or fire men on the trains. Thereafter Steve Meaney had a slide board on which he regularly made the descent with the other members of the crew, with the exception of two wet or foggy nights, when, as he expressed it, he was "new on the board" and came down on the train. It took an hour and 15 minutes for the work train to make the trip down. The men came down on the boards in half an hour, and, as they usually left the summit at half past 5, they passed the work train at the water tank, part way down the mountain. The distance from summit to base was 314 miles. In using the boards the men were instructed to go slowly, to keep a