its face, will not be stricken off, but when it is entered wholly without authority it may be stricken off, for it is no judgment at all so far as it affects the rights of the defendant. Bryn Mawr National Bank v. James, 152 Pa, 364, 25 Atl. 823. This judgment was entered without authority, and the court below found that the entry of it had never been ratified. It cannot therefore remain on the record.

The order of the court below is reversed, and the judgment is stricken off.

(75 N. H. 587)

PETRUS v. BERLIN MILLS CO. (Supreme Court of New Hampshire. Coos.

Nov. 4, 1908.)

NEGLIGENCE (§ 136*)-DANGEROUS CONDITION OF PREMISES LIABILITY — QUESTION FOR JURY.

Where one either knew or ought to have known of a danger incident to the condition of his premises which caused injury to another in time to have removed the danger or to have given warning of the danger to the latter, who did not know and was not in fault for not knowing of the danger, the liability of the former for the injuries sustained by the latter was for the jury.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 316, 317, 326; Dec. Dig. § 136.*]

Exceptions from Superior Court, Coos County.

Case, for personal injuries, by John Petrus against the Berlin Mills Company. A nonsuit was ordered at the close of plaintiff's case, and he excepts. Sustained.

William H. Paine, for plaintiff. Drew, Jordan, Shurtleff & Morris and Rich & Marble, for defendant.

EQUAL

2. MASTER AND SERVANT (8_155*)-INJURIES TO SERVANT PLACE FOR WORK KNOWLEDGE OF DANGER. Plaintiff, an intelligent adult woman, had worked for 18 months in a room wrapping cloth, brought to the wrappers and removed in trucks. While the electric lights were momentarily extinguished, owing to the melting of a fuse, plaintiff left her table to go to a watercloset, and fell over a truck, sustaining injuries. Held, that her knowledge of possible danger from a truck which might be in her way was equal to the master's, and she could not recover because of his failure to warn her thereof.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 310; Dec. Dig. § 155.*]

Transferred from Superior Court, Hillsborough County.

Personal injury action by Margaret Ahern against the Amoskeag Manufacturing Company. Verdict for plaintiff. Transferred from the superior court on defendants' exceptions. Exceptions sustained. Verdict and judgment for defendants.

The evidence tended to prove the following facts: The plaintiff was injured on December 26, 1905, in the defendants' finishing. room, where she was employed. She was intelligent, 37 years old, and had been employed in the same room for 18 months prior to the accident, during which period she had worked in the room 373 full days. About 45 people worked in the room, which was 108 feet long and 70 feet wide. The room contained no machinery, but was equipped with rows of tables with passageways between them. Bolts of cloth were brought into the room on trucks and unloaded on the tables, where they were banded and papered; the latter operation consisting in wrapping them in paper to protect the cloth from dust. The cloth was then reloaded upon the trucks and removed. All the work was done in an orderly and systematic manner. There were places in the room to which the trucks were removed when empty. Trucks were used all about the room, but, when empty, they were not permitted to remain in the passageways. The rule required them to be removed to the place reserved for them, and it was not customary to leave them elsewhere. The room was lighted solely by incandescent electric lamps. On the day of the plaintiff's injury, the light was turned on between 2 and 3 o'clock in the afternoon, and was extinguished about 20 minutes before 6 o'clock by the melting of a fuse near the dynamo. The lamps on such a system are liable to be extinguished in this way, and these lights had failed twice before during the fall months. Such systems are in common use. The fuse is a safety device universally employed. When the location of a melted fuse is known, a new one can be substituted in a few minutes. The defendants had an available supply of fuses to replace any which might melt, and an employé whose duty it was to make

the repair. There was no evidence of defect in the lighting system. The plaintiff was a paperer. After the lights failed, she remained at her table and papered a bolt of cloth. Thinking she would have time to go to the water-closet, she started across the room for that purpose, and was proceeding through one of the passageways when she fell over a truck and received the injuries for which she seeks to recover.

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

PARSONS, C. J. The defendants adopted for the illumination of the plaintiff's work place a system of lighting commonly in use for such purposes, so far as appears, perfect of its kind, but subject to occasional interruptions. They provided the proper means for restoring the action of the system when such interruptions should occur and a competent person to make the necessary repair. If it be conceded that it could be found it was the duty of the defendants to provide and have in operation a sufficient number of other systems of lighting so that by no possibility could the work place fail to be sufficiently lighted for a moment of time, the question would be whether the breach of this duty caused the injury. There was no machinery in the room. The plaintiff's work was the wrapping of bolts of cloth in paper, and there was light enough after the extinguishment of the artificial system for the plaintiff to continue at her work, which she did for a short time after the light failed. If the plaintiff had continued her work or remained in her place no injury would have resulted. The sudden failure of light did not cause the injury.

For a proper purpose the plaintiff left her place to cross the room, and was injured by falling over a temporary obstruction in her path for the existence of which at that place it is conceded the defendants were not responsible. When she left her place, the plaintiff knew of the absence of light; but she says that the defendants, having adopted a system of lighting which was liable to fail at times, should have promulgated a rule requiring the various employés to remain in their places in case the lights failed, and that such rule was required because of the danger that employés might be injured by others moving about. There was evidence of the absence of such a rule formally made, though whether at the time the employés were directed by the person in charge of the room to remain in their places was in dispute. The plaintiff testified that she did not hear such direction. Whether the other employés were directed to remain in their places or not, they did not remove from them to the plaintiff's injury. There was no evidence that the truck was put where the plaintiff

that it was not at that point when darkness intervened where the rule invoked would have required it to remain. If a rule was required for the reason suggested, the plaintiff was not injured by the action of other employés. So far as she is concerned, the argument is that, if such rule had been communicated to her, she could and would have obeyed it, and remained in her place and avoided the injury. It is not contended that the purpose for which she was leaving the room was of such pressing necessity that she would have been justified in disregarding the rule. So far as the plaintiff is concerned, the only office of a rule would be to warn her of the danger that some of the trucks upon which the cloth was brought into the room and moved to and from the various tables might at the moment of darkness be in a passageway through which in the course of business they were moved.

If there are cases where the risk of injury is so concealed or so serious that warning is not a sufficient performance of the master's duty and only a positive rule forbidding the dangerous course of conduct will excuse him, this case is not of that character. There is nothing unfamiliar about the inability to perceive in the dark obstructions to the course of one who walks without light. If there may be obstructions whose presence cannot be ascertained by the eye, due care requires the use of some other sense to detect them. The evidence is uncontradicted that the plaintiff, relying upon her familiarity with the room, was hurrying through the passage without care as to any temporary obstruction in her path, and was injured because of the unexpected presence of the truck. If it can reasonably be found that the plaintiff was without fault in not anticipating the possible presence of the truck in her path, can it be found that the defendants were in fault for not anticipating the same thing and warning the plaintiff of the danger? Whether they can or cannot depends upon the answer to the inquiry whether upon the evidence it could reasonably be found that the defendants' knowledge of the existence of the danger causing the injury was, or ought to have been, superior to the plaintiff's. Gaudette v. Railroad, 74 N. H. 597, 64 Atl. 667; Dube v. Gay, 69 N. H. 670, 46 Atl. 1049; Collins v. Car Co., 68 N. H. 196, 38 Atl. 1047.

It is conceded the defendants supplied suitable instrumentalities-workroom, co-employés, and method of business. A place in the room was set apart where the trucks were kept when not in use. The plaintiff was an intelligent adult. During the preceding year and a half she had worked 373 full days in the room. She knew, as well as the defendants could have known, how the work was done. If it was probable a truck might be in her path, she was as capable of judging

ence of the truck was so unusual, unexpected, and improbable that she was not in fault for not taking care to guard against it, the defendants cannot be found in fault for not warning her of the unusual, not to be expected, and improbable danger. It cannot reasonably be found that of two persons of equal knowledge and of equal ability to appreciate and understand a danger, one is in fault for not apprehending the danger and the other is not. The defendants were under no obligation to warn the plaintiff of a danger they were not bound to anticipate. If they should have anticipated it, on the evidence so should the plaintiff, and her fault precludes a recovery. The fact that one person is injured and the other is not-that one is employer and the other employé will not authorize the imposition of different rules of care as to matters of common knowledge about which each has equal information.

Exception sustained. Verdict and judgment for the defendants.

PEASLEE, J., did not sit. The others con

curred.

(75 N. H. 123)

GORMAN v. ODELL MFG. CO. (Supreme Court of New Hampshire. Coos. Nov. 4, 1908.)

1. MASTER AND SERVANT (§ 150*) — MASTER'S LIABILITY FOR INJURIES TO SERVANT METHODS OF WORK, RULES, AND ORDERS.

A master, employing to perform a certain duty a servant, who knows or is informed as to what his duty is, is not negligent in failing to also inform the servant, by rule or otherwise, that he must not neglect his duty.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 150.*]

2. MASTER AND SERVANT (§ 141*) - MASTER'S LIABILITY FOR INJURIES TO SERVANT-METHODS OF WORK, RULES, AND ORDERS-FAILURE TO PROMULGATE RULES.

Where defendant employed a competent servant to regulate the discharge of sulphur fumes in his pulp mill, the fact that during a temporary absence from duty of such employé a co-employé was poisoned by the fumes, did not render defendant liable on the ground of negligence in failing to promulgate rules forbidding employés to absent themselves during office hours.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 283; Dec. Dig. § 141.*]

Transferred from Superior Court; Chamberlin, Judge.

Case, for personal injuries, by Kate Gorman, administratrix, against the Odell Manufacturing Company. There was a verdict for defendant, rendered pursuant to an instruction to which plaintiff excepted, and the case was transferred from the superior court. Exception overruled.

The plaintiff's evidence tended to prove the following facts: Thomas Gorman, the plaintiff's intestate, was employed by the defendants in their pulp mill, and worked upon

what were known as the "high screens." Murdock McDonald was foreman in and had charge of another part of the mill, where sulphur was burned, and it was his duty to look after the burning of the sulphur, and regulate the discharge of the fumes by the use of lime water and the ventilating system in the mill. Owing to the peculiar construction of the mill, the fumes from the acid plant, when allowed to escape, would naturally go into that portion of the mill where the plaintiff's intestate worked. While he was employed on the high screens, a few days before his death, he was poisoned by sulphur fumes, which formed a gas and produced vomiting. After an illness of about four days, he died from rupture of a blood vessel in the brain. The evidence relating to McDonald's work is discussed in the opinion. Subject to the plaintiff's exception, the jury were instructed that there was no evidence from which they could find that rules differing "from the regulations, or customs, or methods of doing the work, whatever the evidence showed them to be," were necessary.

Herbert I. Goss and Matthew J. Ryan, for plaintiff. Drew, Jordan, Shurtleff & Morris for defendant.

BINGHAM, J. It appears that sulphur fumes escaped into the portion of the mill where the plaintiff's intestate worked and caused him to sicken and die. It was the duty of McDonald to regulate the discharge of the fumes from the burning sulphur by making use of lime water and the ventilating system provided for the purpose, and there was no evidence that he did not know what his duty was and how to perform it. But the plaintiff's evidence tended to prove that McDonald was not at his post of duty at the time the plaintiff's intestate was poisoned by the sulphur fumes, and that he occasionally absented himself from his work and went into another part of the mill, where he could not readily be found when needed. From this it is urged that the court erred in not allowing the jury to pass upon the question whether the defendants were negligent in not providing a rule that their employés should not absent themselves during working hours. We are, however, of the opinion that when a master employs a servant to perform a certain duty, who knows or is informed as to what his duty is, it cannot be found that the master is negligent if he does not also inform him by rule or otherwise that he shall not neglect his duty; that, having informed the servant as to what his duty is, it is not necessary to enjoin him not to neglect it, as the latter instruction is necessarily included in the former. Upon the evidence here presented, negligence could not be attributed to the defendants because of a failure to suitably instruct, or to provide a proper rule for the guidance of, McDonald;

and whether it could be attributed to them, because of their retaining him in their employment after they knew or ought to have known that he was neglecting his duty, is a question not raised by the case.

Exception overruled. All concurred.

(75 N. H. 122)

STATE v. BEAN et al.

(Supreme Court of New Hampshire. Grafton. Nov. 4, 1908.)

1. INTOXICATING LIQUORS (§ 159*)-OFFENSES -SALE TO MINOR.

A sale or delivery of liquor to a minor by a licensee is a violation of Laws 1903, p. 88, c. 95, § 15, as amended by Laws 1905, p. 450, c. 49, 89, prohibiting the sale or delivery of liquor to a minor, and is punishable under section 33 (page 93) of the original act as amended by Laws 1905, p. 456, c. 49, § 18.

[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 159.*]

2. INTOXICATING LIQUORS (§ 215*)-OFFENSES - SALE TO MINOR INDICTMENT - SUFFICIENCY.

An indictment which alleges that Laws 1903, p. 81, c. 95, and amendments thereto, regulating the traffic in intoxicating liquors, had been accepted and were in force in a town, that defendants, copartners, had a third-class liquor license, and that they unlawfully sold liquor to a minor, charges a violation of Laws 1903, p. 81, c. 95, as amended.

[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 215.*]

3. INTOXICATING LIQUORS (§ 236*)-OFFENSES -SALE TO MINOR-EVIDENCE.

Where the state proves that one was a licensee within Laws 1903, p. 81, c. 95, and amendments, regulating the traffic in intoxicating liquors, and shows that he sold or delivered liquor to a minor, a violation of the act as amended is established.

[Ed. Note. For other cases, see Intoxicating Liquors, Dec. Dig. § 236.*]

Transferred from Superior Court, Grafton County.

Charles H. Bean and another were indicted for selling liquor to a minor, and they moved to quash the indictment. The questions of law raised by the motion were transferred from the superior court. Denied.

*

The indictment charged that the defendants on October 1, 1907, at Canaan, in the county of Grafton, with force and arms, "not being then and there an agent or agents of any town or city for the purpose of selling spirit, and being then and there copartners, and the provisions of chapter 95 of the Session Laws of New Hampshire enacted in the year of our Lord one thousand nine hundred and three, and amendments thereto, having been duly accepted and being then and there in force in said Canaan, and said copartners having then and there a third-class license from the state board of license commissioners of the state of New Hampshire for the purpose of selling liquor, and not having then and there a license or other lawful authority

to sell liquor to a minor for any other person, did then and there unlawfully sell to one Howard E. Martin for one Warren Chase a large quantity of liquor, to wit, one gallon of malt liquor, he, the said Howard E. Martin, being then and there a minor under the age of twenty-one years and of, to wit, the age of seventeen years, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." The second count charged in the same language the unlawful delivery of liquor to the minor for another. Marshall D. Cobleigh, Sol., for the State.

John W. Kelley and George W. Stone, for defendants.

The indictment is bad for uncertainty. If the sale was made, it was made in violation of chapter 112 of the Public Statutes of 1901, and amendments thereto, or it was made in violation of chapter 95, p. 81, Laws 1903, and amendments thereto, to which offenses different penalties attach. Laws 1903, p. 122, c. 122; Laws 1903, p. 93, c. 95, § 33. From a reading of the indictment it is impossible to tell which law applies to the alleged offense. If it was intended to charge a violation of law by the defendants as licensees, the premises upon which they were authorized to sell, constituted license territory, should have been described with substantial conformity to the description of the same in the license, and the sale alleged to have been made on such premises. Laws 1905, p. 529, c. 117, § 1; State v. Langdon, 74 N. H. 50, 64 Atl. 1099.

PARSONS, C. J. The sale or delivery of liquor to a minor by a licensee is a violation of section 15, c. 95, p. 88, Laws 1903, as amended by section 9, c. 49, p. 450, Laws 1905, punishable under section 33, c. 95, p. 93, Laws 1903. Laws 1905, p. 456, c. 49, § 18; State v. Langdon, 74 N. H. 50, 64 Atl. 1099; State v. Kennard, 74 N. H. 76, 65 Atl. 376; State v. Kidder, 74 N. H. 302, 67 Atl. 405. It is alleged that the law licensing the sale of liquor had been duly accepted (Laws 1903, p. 92, c. 95, § 31) and on the date of the offense charged was in force in the town of Canaan; that the defendants were then and there co-partners in business, and, having then and there a license for the purpose of selling liquor, did then and there unlawfully sell (in the second count, deliver) liquor to a minor under the age of 21 years. The allegations that the license law was in force in Canaan, and that the defendants were then and there licensed to sell liquor, are sufficient to make it plain that the offense charged is the violation of the special provisions of the license law by the defendants as licensees. State v. Langdon, 74 N. H. 50, 52, 64 Atl. 1099. If the state proves that when and where they were licensees within

the meaning of the act the defendants in Canaan sold or delivered liquor as charged, the offense will be made out. It is not advisable to speculate upon possible questions that may or may not arise upon the evidence.

Motion denied. All concurred.

(75 N. H. 95)

STEER V. DOW.

(Supreme Court of New Hampshire. Hillsborough. Nov. 4, 1908.)

1. GARNISHMENT (§ 114*)-TRUSTEES-LIABILITY.

Under Pub. St. 1901, c. 245, §§ 19, 20, a trustee is chargeable for funds of defendant in his hands when the process is served upon him, and with certain exceptions, including wages for labor performed after such service, for all that may come to his hands up to the time of disclosure.

[Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 233; Dec. Dig. § 114.*]

2. EXEMPTIONS (§ 48*) - TRUSTEE PROCESS WAGES.

Under Pub. St. 1901, c. 245, § 20, exempting from trustee process wages for labor performed after service of such process, only wages for personal service are excepted; a fund created in part by the labor of others than defendant's wife and minor children not being exempt. [Ed. Note. For other cases, see Exemptions, Cent. Dig. 71; Dec. Dig. § 48.*]

8. EXEMPTIONS (8 48*)-TRUSTEE PROCESSWAGES.

Under Pub. St. 1901, c. 245, § 20, exempting from trustee process wages for labor performed after service of such process, where no means are furnished to extricate the privileged lal or from other ingredients composing the indebtedness and to ascertain its value, the trustee is chargeable.

[Ed. Note. For other cases, see Exemptions, Cent. Dig. 71; Dec. Dig. § 48.*]

4. GARNISHMENT (§ 38*)-TRUSTEE PROCESSEXEMPTIONS-NEGOTIABLE INSTRUMENTS.

One sought to be held under trustee process as liable upon a regotiable instrument, will be discharged unless the instrument falls within Act June 30, 1841 (Laws 1841, p. 527, c. 601; Rev. St. 1843, c. 208, as extended by Gen. St. 1867, c. 230, § 21; Pub. St. 1901, c. 245, §§ 21, 22), specifying the negotiable paper subject to such process.

[Ed. Note. For other cases, see Garnishment, Cent. Dig. & 74; Dec. Dig. § 38.*]

5. GARNISHMENT (§ 38*)-TRUSTEE PROCESSEXEMPTIONS-"NEGOTIABLE INSTRUMENT.'

A mere contract of employment specifying compensation for services is not a negotiable instrument within Act June 30, 1841 (Laws 1841, p. 527, c. 601; Rev. St. 1843, c. 208. as extended by Gen. St. 1867, c. 230, § 21; Pub. St. 1901, c. 245, §§ 21, 22), specifying the negotiable paper subject to trustee process.

[Ed. Note. For other cases, see Garnishment, Dec. Dig. § 38.*

For other definitions, see Words and Phrases, vol. 5, pp. 4767-4770; vol. 8, p. 7731.]

6. GARNISHMENT (8 38*)-TRUSTEE PROCESSCONTRACT OF EMPLOYMENT-MATERIALITY.

On trustee process to reach money due under a contract of employment, the contract is material only on the question of title, performing the same office as a bill of sale or a

deed in a proceeding to hold the trustee for the price of the goods or land.

[Ed. Note. For other cases, see Garnishment, Dec. Dig. § 38.*]

7. GARNISHMENT (§ 81*)-TRUSTEE PROCESSDEBT PAYABLE BEYOND STATE.

That payment of a debt contracted within is to be made beyond the state is no answer to trustee process against the debtor.

[Ed. Note.-For other cases, see Garnishment, Cent. Dig. 147; Dec. Dig. § 81.*]

8. GARNISHMENT (§ 110*)-TRUSTEE PROCESSLIABILITY.

The general rule that one can be charged under trustee process only for what defendant could recover of him in suit on their contract is subject to exceptions, and a trustee may be charged where defendant could not sue him without proof of a demand, though none has been made.

[Ed. Note. For other cases, see Garnishment, Dec. Dig. § 110.*]

9. GARNISHMENT (§ 78*)-TRUSTEE PROCESSRESIDENCE OF TRUSTEE.

Under Pub. St. 1901, c. 245, § 5, providing that a nonresident doing business in the state may be charged on trustee process as if a resident for credits of defendant through contracts made or performed within the state, a foreign life insurance company is chargeable on such process for renewal commissions due a general agent on business done within the state.

[Ed. Note.-For other cases, see Garnishment, Cent. Dig. 144; Dec. Dig. § 78.*]

Action by Elizabeth B. Steer against M. Ivan Dow. Transferred from superior court on an issue as to the New York Life Insurance Company's liability as trustee. Trustee chargeable.

Debt, upon a judgment. Facts found by the court. The defendant appeared and was subsequently defaulted. The only controversy is as to the liability of the New York Life Insurance Company as trustee; and that question was transferred without a ruling from the January term, 1908, of the superior court by Plummer, J. The trustee was summoned by service upon the insurance commissioner on November 5, 1906, and at that date was not indebted to the defendant. From the disclosure taken May 10, 1907, it appeared that the trustee was then indebted to the defendant in the sum of $91.27. Prior to June 30, 1906, the defendant was the general agent of the trustee in New Hampshire, was located in Manchester, and had subagents in his employ. Under his contract of employment he was entitled to renewal commissions payable to him at Manchester on business transacted in New Hampshire by him and his agents. The disclosed indebtedness of the trustee all arose from renewal commissions accruing to the defendant from business in New Hampshire done by him and his subagents. June 30, 1906, the defendant removed to Boston, and his renewal commissions were made payable to him in Boston instead of at Manchester. At the January term, 1908, the trustee appeared by counsel and moved for a discharge upon the following grounds: (1) The renewal commissions