not be removed from the land, whether some of it is a part of the real estate and is so annexed to the realty as to belong to the owner of the fee and to be governed by the law relating to real property, and, if so, what part of it has that character, are questions which are not decided upon the present state YOUNG, J. Counsel had a right to urge of the pleadings. Nor is it deemed advisable his views on the court, if he honestly beto determine whether the plaintiff may pro-lieved the question was competent. If the ceed upon this bill in equity to try the questions of a breach of the contract by the contractors and the resulting damages, until the defendants definitely raise that issue and seek its adjudication. Case discharged.

verdict stand as a finding of fact, for although in such case it must be assumed that all facts necessary to support the verdict, which could be found by inference from the facts agreed, were found by the court in reaching a conclusion in favor of the plaintiff, and although there is evidence from which lack of care in the construction of the water course at the point of connection between the culvert and tile pipe could be found, there is no evidence that the water course was constructed or maintained as a common sewer, as alleged in the declaration, Such a conclusion is directly negatived. The parties have agreed that the stream flowing through the culvert was not maintained by the city as a sewer, and that the city had no knowledge it was so used. Hence the act of the plaintiff in attempting to so use the culvert constructed by the city to carry this stream of water was a wrongful interference by him with the property of the city, and, as it does not appear the plaintiff would have been damaged except for the drain by which he connected his cellar with the culvert, he cannot claim damages from the city for an in

the rear of the lot in a covered stone culvert, which connected with a tile drain on the southerly side of the premises. About ten years before, the city in building a street diverted the stream so as to cross this lot. About three years later the culvert was built by the city, and afterward it was continued by the tile drain. At the upper end of the culvert an iron grate was placed to screen the water passing through. The city did not maintain the water course as a sewer and had no knowledge that it was so used. The plaintiff enlarged and deepened the cellar under his house, and laid a drain from it connecting with the culvert in such a manner that the water of the stream might flow back. The drain was used to carry the sewage of the house until the summer of 1907, when the city constructed a sanitary sewer on Park street, and the plaintiff connected his premises therewith for sewerage purposes, leaving the drain to carry off water which accumulated in the cellar. During freshets in March, 1907, and in February, 1908, the water backed through the plaintift's drain into his cellar, causing the damage sued for. In March, 1908, the city un-jury which would not have happened to him covered the culvert at the lower end, and it was found that the upper end of the tile pipe was much obstructed by an accumulation of tin cans, bottles, and other débris. The tile pipe and culvert are large enough to carry all the water of the stream, but the pipe is smaller than the culvert, and the construction at this point is such that articles like those found might naturally accumulate there. Upon the foregoing facts a verdict was given to the plaintiff.

except for such interference. The verdict should be set aside because the special fact found is inconsistent with the general verdict. Concord Coal Co. v. Ferrin, 71 N. H. 331, 335, 51 Atl. 283, 93 Am. St. Rep. 496. The conclusion involved in a general verdict that the plaintiff was damaged by the defendants' negligent management or construction of a common sewer with which the plaintiff's premises were rightfully con nected is negatived by the special finding

Herbert I. Goss, for plaintiff. Matthew J. that the stream was not maintained as a Ryan, for defendant.

PARSONS, C. J. The case does not disclose any question of law reserved in the superior court. So far, as appears, all questions there raised were settled without exception. Strictly therefore there is nothing before this court upon the record. The parties, however, have argued the validity of the verdict upon the agreed facts, and it is probable that the defendants' exception to the verdict was accidentally omitted when the record was made up for the transfer. With that understanding the case has been considered. The record also fails to state

whether the verdict "given to the plaintiff" was understood to be so given because as matter of law the facts which had been agreed upon required such a verdict, or whether from the evidence furnished by these facts the court, performing the function of a jury, found the verdict.

As the fact of negligence on the part of the defendants, which is the foundation of the plaintiff's action, is not agreed, the verdict cannot be sustained as a conclusion of law from the facts stated. Neither can the

sewer.

The legal right of the city to maintain the culvert over the plaintiff's land is not in question. The plaintiff did not object, but assented to its existence, and was injured by his unauthorized use of it. Case discharged. All concur.

(75 N. H. 102)

LANE v. MANCHESTER MILLS. (Supreme Court of New Hampshire. Hillsborough. Nov. 4, 1908.)

1. MASTER AND SERVANT (§ 280*)-INJURY TO SERVANT-ASSUMPTION OF RISK-EVIDENCE.

In an action for the death of an employé while working as a patter-boy in a mill, in consequence of being struck by cloth while running through different machines in one continuous piece, evidence held to warrant a finding that the employé did not appreciate the danger, and therefore did not assume the risk.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 983; Dec. Dig. § 280.*] 2. MASTER AND SERVANT (§ 280*)-INJURY TO SERVANT-ASSUMPTION OF RISK-EVIDENCE.

In an action for the death of an employé 141⁄2 years old, while working as a patter-boy cloth while running through different machines in a mill, in consequence of being struck by in one continuous piece, the fact that a boy

if Lane, who was 4 feet tall, was near the | that the burden of proving nonassumption of middle of the boxes, there was not room for him to walk under the cloth without stooping. The evidence was conflicting as to how much of the time the machine was used in this way. There was evidence that for a month or more before the accident it had been so used for a third of the time, and also that it had been so used only a very few times. On the day of the accident Lane was sitting on the west end of one of the middle boxes, attending to his work. He got up, started east on the rail of the box, stooped when close to the moving cloth, and passed under it, and resumed his work. A minute or two later the cloth sagged and struck the side of his face, and either threw him from the box, or caused him to lose his balance and fall from the box to the floor. The injury thus received resulted in his death the following day. The plaintiff's counsel in argument asked the jury to find from what they saw at the view that the defendants never used the contrivance for rewashing cloth after the accident. The defendants excepted to this argument, and to the denial of their motions for a nonsuit and the direction of a verdict in their favor.

Branch & Branch and Michael F. Shea, for plaintiff. Taggart, Tuttle, Burroughs & Wyman, for defendants.

WALKER, J. If the cloth had not become slack, the boy would not have been within its plane, and would not have been struck by it. | The circumstance, then, that rendered the place unsafe and dangerous, as claimed by the plaintiff, was the liability of the cloth to sag so that the boy could not pass under it without stooping. This was not a concealed defect of which the boy was ignorant, for just before his injury he attempted to pass under it by stooping. It may also be assum ed that he must have known that the cloth was liable to be drawn up suddenly by the operation of the machinery, and that it might strike his head with some force if he was standing sufficiently near it. But it cannot be said that he realized or appreciated the fact that the blow might cause him to lose his balance and fall to the floor. While it is more than probable that he knew he might come in contact with the cloth as it was drawn up to a taut condition, it cannot be held that reasonable men might not find that he did not appreciate the force of the blow, or realize the effect it was liable to have upon him in the peculiar position his duties required him to occupy; that is, he might not have appreciated that his situation was a dangerous one. Demars v. Company, 67 N. H. 404, 40 Atl. 902; Goodale v. York, 74 N. H. 454, 69 Atl. 525. But it is urged that the evidence is insufficient to support such a finding and that it is as probable that he did, as that he did not, appreciate the danger. If

risk was upon the plaintiff, it cannot be said that no evidence was submitted in support of it. It is common knowledge that a boy 14 or 15 years of age, though of average intelligence, is less likely to be cautious and apprehensive for his own safety, when laboring about machinery in operation, than the ordinary man would be. The immaturity of his judgment, due to lack of experience and observation, often suggests to his mind a course of conduct which an adult would at once see was attended with danger. This fact is some evidence bearing on the question whether the deceased intelligently assumed the risk of being hit by the moving cloth with sufficient force to cause him to lose his balance and fall to the floor. Disalets v. Company, 74 N. H. 440, 69 Atl. 263. It also appears that at the time he was injured he was engaged in the performance of his duties, moving about upon the boxes, and it might be inferred that such a boy, under such circumstances, would not consider the danger of his position. The evidence was somewhat contradictory as to the number of times dry cloth had been carried to the boxes in this way during the time the boy worked there. The jury might have found that such an occurrence was very infrequent, and that running cloth in that way was an abnormal and unusual method of performing the work. Although there was much evidence that this was not an unusual method of work, it cannot beheld that reasonable men could not find otherwise. It might therefore be found that the boy was suddenly brought face to face with a practically new situation while attending to his duties, the danger of which was not apparent to his understanding. Hence a finding that he did not appreciate the risk he incurred would seem to be amply supported by the plaintiff's evidence. The evidence was also sufficient to support the finding that the defendant provided an unreasonably dangerous place for the deceased to work in. No reason is suggested why a safe method of conveying the dry cloth to the boxes was impracticable, or why an unsafe method was necessary. The jury, having had a view of the place and observed the machinery in operation, were warranted in finding from all the evidence that the defendant failed to perform its master's duty to the deceased in requiring him to work in a place which was not safe, in view of his youthfulness and want of experience in similar situations, and that its negligence in this respect was the proximate cause of his injuries. These findings were matters of legitimate inference for the jury to draw.

But it is claimed by the defendant that the burden was upon the plaintiff to prove, not only that the defendant was negligent in failing to provide a reasonably safe place for the deceased, but in not warning him of the danger and risk of his employment, and that

ground of liability. If, however, it was incumbent on the plaintiff to prove that the master did not warn the decedent of the danger he encountered (Bennett v. Company, 74 N. H. 400, 68 Atl. 460), a point upon which no opinion is expressed, it cannot be said that the jury were not warranted in finding that he received no warning or instruction from the master upon this subject. Indeed it may be conceded that, from the plaintiff's evidence alone, that fact could not be found; but, if the alleged defect in the plaintiff's proof was afterwards supplied by the defendant's evidence, the denial of the motion for a nonsuit for that cause cannot be reversed. "Where, after a motion for a nonsuit is erroneously denied, the defendant, instead of risking his case upon the exception, goes on

with the trial and introduces evidence, the exception is waived if the deficiency in evidence is supplied by one side or the other before the case goes to the jury." Burnham v. Railroad, 69 N. H. 280, 282, 45 Atl. 563, 564. The theory of the defense was that the place was not dangerous for a boy like the deceased to work in, and that he fully understood his situation, and hence that no instruction or warning was necessary. If no instruction was necessary, the inference that none was given would not be an illogical or violent one. It is a reasonable deduction from the defendant's theory of defense, and its evidence in support thereof. The silence of the defendant's testimony upon this subject, in view of the defense insisted upon, was an evidentiary fact in favor of the plaintiff, which supplied the defect, if any, in the plaintiff's evidence. It follows that, if the motion for a nonsuit should have been granted when made, the exception to the denial of the motion was subsequently waived or abandoned by the de

fendant.

The defendant's final exception relates to the argument to the jury by the plaintiff's counsel. If it is susceptible of the construction that the defendant discontinued its dangerous method of work after the injury to

legal bearing or want of relevancy upon the question of the defendant's negligence was a question of law for the court. If in argument counsel took an erroneous view of the law applicable to such evidence, a request for proper instructions as to its relevancy would have protected the defendant. Leavitt v. Company, 72 N. H. 290, 56 Atl. 462; Seeton v. Dunbarton, 73 N. H. 134, 137, 59 Atl. 944. In the absence of such a request, it is presumed the court's charge was proper upon the point suggested.

Exceptions overruled; judgment on the verdict.

1. EXECUTORS AND ADMINISTRators (§ 233*) —

CLAIMS FAILURE TO PRESENT-RELIEF.

The relief afforded by Pub. St. 1901, c 191, § 27, to a decedent's creditors who have not prosecuted their claims within the time prescribed by law is based on justice and equity, and want of culpable negligence on claimant's part.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 831; Dec. Dig. § 233.*]

2. EXECUTORS AND ADMINISTRators (§ 437*)— ACTIONS-LIMITATIONS-EFFECT of Statute

-"SUSPENSION.'

A mere failure to apply for administration is not a "suspension" within Pub. St. 1901, c. 191, §§ 2, 4, prohibiting suits against an administrator unless the demand is exhibited to, and suit is brought against, him within a specified time after grant of administration, excluding the time administration may have been suscaused by the death, resignation, removal, etc., pended; the suspension contemplated being one of an original administrator upon a deceased debtor's estate within the period prescribed for presentation of claims or suing, and having no reference to a suspension of administration upon a deceased creditor's estate.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 1749; Dec. Dig. § 437.*

For other definitions, see Words and Phrases, vol. 8, pp. 6833–6835.]

3. EXECUTORS AND ADMINIstrators (§_431*)—

ACTIONS-CONDITIONS PRECEDENT-PRESEN-
TATION OF CLAIM.

the deceased, and that this was an admission that it was dangerous, the prejudicial character of the argument consisted, not in the In the absence of fraud or its equivalent, statement of a material fact not in evidence, and apart from the relief afforded by Pub. St. 1901, c. 191, § 27, to a decedent's creditor who but in the assertion of an erroneous rule of has not prosecuted his claim within the time law in its application to the facts. Aldrich prescribed by law, proof of presentation of a v. Railroad, 67 N. H. 250, 29 Atl. 408. From claim within one year after grant of administhe view which the jury took of the premises, tration, etc., as required by section 2. is essential to a suit against a deceased debtor's expresumably with the assent of the defendant, ecutor or administrator, under section 4, authey saw the condition of the machinery,thorizing such suit to be brought within two and noticed that the use of the particular method of operation in question had apparently been discontinued. What they saw, without objection, became evidence for their consideration under instructions from the court. The plaintiff's counsel did not attempt to state facts of which there was no evidence. At most he was merely stating his view of the effect of the evidence. But its

years from the grant of administration.

and Administrators, Cent. Dig. § 1679; Dec. [Ed. Note.-For other cases, see Executors Dig. § 431.*]

4. EXECUTORS AND ADMINISTRATORS (§ 431*) — ACTIONS-CONDITIONS PRECEDENT PRESENTATION OF CLAIM.

It is essential to an action against an administrator, under Pub. St. 1901, c. 191, § 6, providing that, if a right of action existed in favor of or against decedent when he died, and