The agreement of the parties, dividing the fence for the season, included an implied stipulation that each should maintain the part accepted by him. By the common law of New Hampshire, established by common custom and understanding, the unrescinded, oral contract, executed by one party, bound the other. The statute of fences does not expressly prohibit a parol division for the season; and the construction of the statute, settled by long usage, is, that it does not relieve the defendants from liability for the damage caused by the non-performance of their agreement.

Exception overruled.

BLODGETT, J., did not sit: the others concurred.