The case is not distinguishable from Rossiter v. Colby, 71 N.H. 386. The promise was a conditional one, and Thyng does not bring himself within its terms. 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., c. 204, ss. 11, 12), and this was all that was necessary to preserve the rights of the parties. Batchelder v. Railway, 72 N.H. 329.

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. *Page 573