In an action upon the case against a town, 3n the statute, the defendants objected to the admission of *444evidence tending to show that the plaintiff was driving with due care, because there was no specific averment to that effect in the declaration. Undoubtedly the rule of law is a sound one, that the probata must conform to the allegata, and that evidence cannot be given of facts not alleged. But the mode of averment is regulated by judicial practice, generally too well settled to be called in question.. Under a count for money had and received, for instance, a great variety of facts may be given in evidence, of which the declaration gives no intimation.

In the present case, the court are of opinion, that the declaration is sufficient to admit the proof offered. To maintain this action, the plaintiff is bound to prove affirmatively, not only that the highway was defective, but that his loss was caused by that defect. The per quod is of the essence of the charge, and must be strictly proved. Though the highway be ever so defective, if the plaintiff has suffered no 'oss by reason of such defect, he has no cause of action. Lane v. Crombie, 12 Pick. 177. Smith v. Smith, 2 Pick. 621.

When a traveller on the highway has broken down, it is obvious that this may be attributed to either one of two causes; viz. his own negligence, or the defect in the highway. Proof, which negatives the one, tends to establish the other, as the true and sole cause. This is the ground of the decisions, cited in the argument, to prove, as they do most fully, that the plaintiff must show that he was driving with due care. It is to negative carelessness, and prove that the accident was occasioned exclusively by the defect in the highway. The plaintiff therefore may give affirmative proof that he was driving with due care, because it establishes his main averment, and the one on which his right of action must rest, namely, that his loss was occasioned by reason of the defect in the highway. Even if this were an irregularity and defect in the declaration, we think it would be within the authority of that class of decisions, in which it has been held, that a case, if defectively stated, is aided by verdict, Decause the court will presume that the requisite proof to *445support the case was given at the trial. Worster v. Canal Bridge, 16 Pick. 541. If no sufficient case is stated in the déclaration, the defendant has his remedy in a demurrer, or motion in arrest of judgment, and not by excepting to evidence. Exceptions overruled.