In England, the practice is, if the plaintiff fail to prove every fact necessary to support the action, or if the facts proved are insufficient in law to maintain an action, the court direct the plaintiff called: 1 Sellon's Pr. 462. In Hubert v. Groves, 1 Esp. 148, the court ordered the plaintiff called; yet in that case the plaintiff had proved the declaration, and the only question was, whether that set out a legal cause of action. That case went to trial under a plea of not guilty. And though the court can not nonsuit the plaintiff against his consent, yet if he persist in answering, when called, the court will direct a verdict against him: Sellon's Pr. 464.

We have not adopted the practice of directing the plaintiff called, but our practice has been, in such case, to direct a verlict for the defendant, unless the plaintiff shall elect to become nonsuit. In the case of Smith v. Joiner et al., 1 D. Chip. 64, the evidence showed a cause of action against the defendant, but the action should have been brought in the name of the sheriff, and not by the deputy, as it was. The court say, as this matter appears upon the face of the declaration, it should have been demurred to, but is fatal under the general issue; and a verdict was directed for the defendant. The case of Gleason v. Peck et al., 12 Vt. 56 [36 Am. Dec. 329], was an audita querela, and the plea not guilty; and though the complaint was proved against one of the defendants, yet the court below decided the action could not be maintained against either. The declaration would have been held bad on demurrer. The judge who gave the opinion of the court seemed to think that if the issue had been to the jury, the verdict must have been against such defendant; but I appprehend it is immaterial whether the issue be to the court or jury. Though the court do not in form render a verdict, yet they find the issue; and if they find the issue for the plaintiff and give judgment in his favor, upon a declaration that sets forth no cause of action, it will be reversed upon error; and I apprehend the court, on motion, would arrest judgment.

The point decided in the case of Barney v. Bliss et al., 2 Aik. 60, went simply to show, that if the matter in a plea amounted to no defense, and the plaintiff took issue upon it, it was not error for the court to admit legal evidence to prove the issue, and to direct the jury, if proved, to return a verdict for the defendant. The point now before us was not in the case of French v. Thompson, 6 Vt. 58. In that case the county court charged the jury, that a valid promise was proved, and the jury found for the plaintiff. The case does not establish the position, that if

the promise set forth in the declaration and proved had been void, it would have been error for the county court, if they had thought proper, to have directed a verdict for the defendantthough perhaps the reasoning of the learned judge goes that length.

It is said that in such case the plaintiff is entitled to a verdict, because, if it is set aside upon a motion in arrest, the defendant recovers no costs. But I do not apprehend this is a sufficient reason why the court should be compelled to do a nugatory act-especially as the plaintiff is first in fault in pleading. If the declaration were defective for the want of some averment, which would be cured by verdict, and the proof were sufficient, the court doubtless should direct the issue to be found for the plaintiff. It has been frequently held by this court, that when a case comes up upon exceptions, they will look into the whole record, and if, upon the whole record, the judgment of the county court was correct, it will be affirmed, though there may have been error in the decision of the county court upon the point to which the exceptions were taken. We think the judgment of the county court can not be reversed upon any exception taken to the proceedings of that court upon the two first counts.

It is claimed, that there was error in the county court, in not confining the plaintiff, under his third count, to some one single injury, accruing at some one time, when the plaintiff was passing over the road. It is familiar law, that if a trespass be of such a nature, that it may either be continued, or repeated, the plaintiff may declare, strictly with a continuando, or in the mode adopted in the present case. If, however, the trespass can not be continued, or repeated, you can not so declare: Monkton v. Pashley, 2 Salk. 638; 9 Bac. Abr. 511.

In the case of the obstruction, or insufficiency of a public highway, it is the per quod, which is the gravamen of the actionnot the insufficiency of the road. The injury sustained at any one time can not be continued, or repeated. The injuries sustained on different days, while passing the road, must, from their very nature, be distinct and independent. There could be no more a continuation, or repetition of the injury, than in the case of taking the plaintiff's horse. It is undoubtedly true, that for an injury from the obstruction of a private right of way, the declaration may be with a continuando, and the difference is, that in the latter case the gravamen of the action is the stoppage of the way, which may well be continued. Where the injury is

improperly laid with a continuando, the plaintiff, without any waiver on his part, may, upon the objection of the defendant, be confined in his proof to a single injury, though it might be the ground of a special demurrer: Gould's Pl. 107, sec. 95.

This court are satisfied with the charge of the court below under the fourth count in the declaration. The damages are, or should be, assessed to the landholders with the expectation, that the public may take materials from the highway for the purpose of building or repairing the road. The question as to the right, raised in this case, was decided some years since in Windsor county, where timber was cut upon the limits of the highway to repair a bridge; and the true rule was laid down by the county court as to the care, which the public should use in regard to the landholder's rights. Upon recurring to the declaration, it will be found, that there is no complaint, that the defendants carried the clay, dug upon the highway opposite to the plaintiff's land, beyond the line of his farm and there to be used on the highway. But if this question arose on the declaration, we should be satisfied with the ruling of the county

court.

The judgment of the county court is affirmed.

LIABILITY OF TOWNS FOR DEFECTIVE HIGHWAYS did not exist at com. mon law in favor of one injured thereby: Mower v. Inhabitants of Leices ter, 6 Ain. Dec. 63; Hyde v. Town of Jamaica, 27 Vt. 457, 458, citing the principal case; the right of action must be given by statute: Eastman v. Meredith, 36 N. H. 298; Jones v. City of New Haven, 34 Conn. 13; Mitchell v. City of Rockland, 52 Me. 123; Browning v. City of Springfield, 17 Ill. 146; and municipal corporations are not liable to a private action or to indictment for failure to perform duties imposed on them, not by their charters, but a general law, except when expressly made subject to such remedies by the statute itself: State v. Town of Burlington, 36 Vt. 524; all citing the principal case. As to the duty of towns to keep their roads in repair, see Dutton v. Weare, 43 Am. Dec. 590, and note to Riddle v. Proprietors, 5 Id. 42; Bancroft v. Lynnfield, 29 Id. 623. If an individual suffer special damages by an obstruction of a highway, he may have his action therefor: Thayer v. Boston, 31 Id. 157; but special injury must exist: Id.; Stetson v. Faxon, 31 Id. 123; and the injury must be direct, and the defect the immediate and proximate cause: Hatch v. Robinson, 26 Vt. 739; Hyde v. Town of Jamaica, supra; Stickney v. Town of Maidstone, 30 Id. 740; all citing the prin cipal case. But an injury occasioned to an individual by being deprived of the use of a highway, in consequence of its being blocked up with snow, is not special damage, and no action can be maintained against the town: Griffin v. Sanbornton, 44 N. H. 249; and see Farrelly v. City of Cincinnati, 2 Disney, 567, 541, where it was held, that if one having access to other routes voluntarily uses a founderous way, after discovery of its condition, he can not recover for loss from its continued usage; nor can an omnibus line, forced to abandon the nearest route, by reason of the non-repair of a street, and seei

its destination by longer and more circuitous routes, whereby it suffers injury to its business, sustain such special damage as to entitle it to maintain an action against the city—both citing the principal case. If one cease to use a highway for the purpose of passing and repassing thereon, the duty and liability of the town toward him in regard thereto end; so held in maintaining that a person traveling on Sunday, in violation of the statute prohibiting traveling on that day, except from necessity or charity, can not recover for injuries sustained by reason of the insufficiency of the highway: Johnson v. Town of Irasburgh, 47 Vt. 36, citing the principal case; and see further, in regard to injuries sustained while traveling on Sunday: Bosworth v. Inhabitants of Swansey, 43 Am. Dec. 441; Dutton v. Weare, Id. 590. A town is liable for damages arising from its having allowed the sides of a traveled path of a public highway to be unnecessarily incumbered: Johnson v. Whitfield, 36 Id. 721; and for an injury to a traveler passing over a highway while it is undergoing repair: Jacobs v. Bangor, 33 Id. 652. As to notice by the town of defects, how inferred and proved, see Reed v. Northfield, 23 Id. 662; French v. Brunswick, 38 Id. 250.

PROPRIETORS OF PUBLIC HIGHWAYS LIABLE FOR DEFECTS.-The proprie tors of a canal are liable for its insufficiency to allow a certain raft to pass through it, when their act of incorporation bound them to construct their canal so that such rafts could pass through: Riddle v. Proprietors, 5 Am. Dec. 35. If any person suffer a direct, special injury by reason of the insufficiency of a bridge, carrying a highway over a canal, which the canal company was bound by their charter to repair, he may recover of the company the damages sustained: Pennsylvania etc. Canal Co. v. Graham, 63 Pa. St. 296. Under the revised statutes of Maine, there is no essential difference between the obligations and liabilities resting upon toll-bridge corporations and upon towns charged with the maintenance of a bridge: Orcutt v. Kittery Point Bridge Co., 53 Me. 502; both cases citing the principal case.

ACTION BY ADJACENT OWNER FOR NUISANCE IN HIGHWAY: See Mayhero v. Norton, 28 Am. Dec. 300, and note; and for injuries caused by grading streets: Meares v. Comm'rs of Wilmington, 49 Id. 412, and note, collecting prior cases in this series.

THE PRINCIPAL CASE IS FURTHER CITED in Amidon v. Aiken, 28 Vt. 441, to the point that it is in the discretion of the court, if all the facts in an insufficient declaration are proved, to allow a verdict for the plaintiff, leaving the defendant to move in arrest of judgment, or at once direct a verdict for the defendant; and see also, to the same effect, Batchelder v. Kinney, 44 Id. 157.

CASES

IN THE

SUPREME COURT OF APPEALS

OF

VIRGINIA.

HEALY ET AL. v. ROWAN ET AL.

[5 GRATTAN, 414.]

MARRIAGE ARTICLES MADE BETWEEN INFANT FEME AND HER INTENDED HUSBAND will be enforced by a court of equity, where they are beneficial to her and to her contemplated issue.

MARRIAGE ARTICLES MADE BETWEEN GUARDIANS OF INFANT FEME and her intended husband, but to which she is not a party, do not bind her. DEED OF MARRIED WOMAN IS VOID AS TO HER where the certificate of acknowledgment fails to show her privy examination as required by law. BILL in equity filed by the children of Elizabeth Steptoe, deceased. In 1782, a marriage being about to take place between William Steptoe and Elizabeth Robinson, who was then an infant possessed of a large estate, real and personal, her guardians entered into articles of agreement with said William, reciting the intended marriage and her infancy, and covenanting on the part of said Steptoe, that if the marriage should take place, he would, after the said Elizabeth attained her majority, join her in making a settlement of certain lands and slaves, in trust for him and her for their joint lives, and if there were children of the marriage, after the death of said William and Elizabeth remainder to such child or children as she should by will appoint, and failing such appointment, to her heirs forever. Elizabeth Robinson was not a party to these articles. After the marriage, the husband and wife executed a deed of the lands and slaves named in the articles to Ralph Wormley, jun., upon the trusts above stated. This deed was acknowledged in court by Steptoe and wife, and was ordered to be recorded; but the certificate of the clerk did not show that the wife was examined