In addition to those points which were conclusively settled by the verdict against the plaintiff town, the jury must have found, under the instructions of the judge, that the injury to Whittaker, the plaintiff in the original suit, was solely caused by a defect in the highway occasioned by an obstruction placed there by the defendant or by his procurement; that the original defect had not been rendered more dangerous by the act of the plaintiffs ; and that they had not contributed by their acts to the accident. This was enough to entitle the plaintiffs to a verdict. It is too late to claim that the parties were in pari delicto. The only fault in the town was the failure to remedy a nuisance which the defendant had created. Lowell v Boston & Lowell Railroad Co. 23 Pick. 24. Lowell v. Short, 4 Cush. 275. Swansey v. Chace, 16 Gray, 303. Milford v. Holbrook, 9 Allen, 17.

Exceptions overruled.