majority">Waite, J.

The plaintiff in error, in the first place, insists, that the declaration is insufficient, for several reasons.

1. It is said, the form of the action is wrong. The statute gives an action on the case, whereas this is an action on the statute. Without doubt, where a statute provides a remedy, and prescribes the form of action, the remedy must be sought in the manner prescribed. But what is this but an action on the case, brought upon the very case arising out of the provisions of the statute ? The term action on the case comprehends a great variety of suits; and this is but one species. Such an action may be brought upon a statute, as well as for a fraud or a breach of a warranty. The form, in this case, is such as is usually adopted where the remedy is given by a statute. 2 Swift’s Dig. 570.

2. It is next claimed, that the averments as to the defendant’s liability to repair, are defective.

We think this objection well taken to the first count. It is there averred, that the plaintiff and defendant being the adjoining proprietors of certain tracts of land, the defendant neglected and refused to keep in repair the divisional fence between those tracts. But there is no averment of any obligation on his part to do that.

The statute, indeed, provides, “that when adjoining proprietors enclose their lands in severalty, each shall make and maintain one half of the divisional fence.” Stat. 250, 1. tit. 82. s. 2. (ed. 1838.) Although such is the general law, yet it does not follow, that this obligation may not be changed, by special agreement, or in some other manner. It does not, *533therefore, follow, that because the parties are adjoining proprietors, each must be necessarily bound to maintain one half-of the fence.

But there is another count, and the rule in this state is, that if any one count in the declaration is good, it will be sufficient to sustain a general verdict. Wolcott v. Coleman, 2 Conn. R. 337.

The second count goes farther than the first, and says, that the plaintiff and defendant being adjoining proprietors, the defendant neglected and refused to keep in repair that part of the divisional fence, which he was bound to maintain and keep in repair. It does not, indeed, state, why he was so bound; yet, when we take into consideration the allegation that the parties were adjoining proprietors, that the statute makes it the duty of each to maintain one half of the divisional fence, and the further allegation, that the defendant neglected to repair that part of the fence which he was bound to repair, the conclusion seems necessarily to follow, that this obligation arose from the circumstance that they were the adjoining proprietors, and the duty imposed by the statute.

The averment is loosely made ; but we are inclined to consider it sufficient, especially after verdict. It is true, there was no verdict in this case, because the parties, in pursuance of the provisions of our statute, consented to have the issue found by the court instead of the jury. St at. 5(5. tit. 2. c. 1. s. 58. (ed. 1838.) The finding of the court, under such circumstances, must have the same effect upon the defects in the declaration, as the verdict of a jury. The defendant’s liability, at most, is defectively stated, which, like a title defectively stated, may be good after verdict.

3. It is further said, that there is no averment of any ownership or occupancy, by the defendant, of the adjoining land. But the action is founded upon the statute; and it is enough for the plaintiff to bring his case within the express provisions of the act. The statute says nothing oí' the ownership or occupancy, but provides, that each of the adjoining proprietors shall make one half of the fence ; and if he refuses, the remedy is given to the other. The declaration states, that the parties were adjoining proprietors, and, in this respect, conforms to the language of the statute.

4. In the next place, it is said, that the expression, “ has *534heretofore neglected and refused” to keep the fence in repair, refers to the date of the writ ; and is, therefore, not a sufficient averment of a neglect at the time the fence-viewers were called out.

But: this, taken in connexion with the other averments, sufficiently shews what is meant. It is afterwards stated, that the fence-viewers were called out, adjudged the fence insufficient, gave notice of the insufficiency to the defendant, who did not repair the fence, and thereupon the plaintiff caused it to be repaired.

5. The plaintiff in error, in the next place, complains, that the proceedings of the county court were erroneous, in the manner set forth in the bill of exceptions.

We do not consider ourselves justified in entering into an examination of the matters therein contained, because the bill of exceptions presents a clear and manifest attempt to bring up the whole case for reexamination, in violation of a well-settled rule of law upon this subject.

The bill commences by stating, that, upon the trial of the cause, on the general issue, joined to the court, the facts, as found by the court, were as follows ; and then proceeds to detail those facts at length. It then concludes, by saying, that the court, upon the facts and evidence aforesaid, did find in favour of the plaintiff.

The finding of the court upon the facts and evidence, is the only decision complained of; and we are now called upon to examine the evidence, and determine whether the finding was right. This a court cannot be required to do, upon a bill of exceptions. The rule has been too often repeated, by this and other courts, to be now questioned. Shelton v. Hoadley, post. Lyme v. East-Haddam, 14 Conn. R. 398. Picket v. Allen, 10 Conn. R. 147. 156. Watson v. Watson, 10 Conn. R. 75. Wadsworth v. Sanford, Kirby, 456. Van Garden v, Jackson, 5 Johns. R. 467. Jackson d. Saunders & al. v. Cadwell, 1 Cowen, 622. Ex parte Crane, 1 Peters, 190.

In this opinion the other Judges concurred.

Judgment affirmed.

Citation profile

How this case has been treated — in progress