The objection, that the plaintiff was a feme covert when this action was commenced, was not open to the defendants under their answer to her declaration. Coverture, as a disability to sue, must be pleaded in abatement. It is no defence in bar; and if it were, the answer should have set it forth-as a fact intended to be relied on in avoidance of the action. Gould PL c. 5, § 53. St. 1852, c. 312, § 18. Evidence of the plaintiff’s divorce was therefore needless; but its admission, though objected to, is no ground of exception. It did the defendants no harm.
Nor do we find any legal objection to the testimony which was given for the purpose of showing that the defendants repaired the way in question, in 1853 and 1854. It tended to prove the liability of the defendants to this action. The Rev. Sts. c. 25, § 26, provide, that if, on the trial of an action brought to recover damages for an injury received by reason of any deficiency or want of repair in a highway, town way, &c., it shall appear that the town against which such action is brought has, at any time within six years before such injury, made repairs on the way, it shall not be competent for such town to deny the location of the way. And we have no doubt that want of a railing necessary to the security of travellers is a “ deficiency ” in a way, within the meaning of this § 26, as it has been held to be a “ defect ” within the meaning of § 22 of the same chapter, which rendered towns answerable for damages sustained by reason of any defect in a way. Palmer v. Andover, 2 Cush. 600.
It is contended by the defendants, however, that this provision in § 26 was repealed by St. 1846, c. 203, § 1, which enacts that no way theretofore opened and dedicated to the public use, and not already become a public way, and no way thereafter opened and dedicated to the public use, shall become chargeable upon any town, unless such way shall be laid out and established by the town, in the manner prescribed by the statutes of this commonwealth. But this statute has no bearing on the present case. It was passed for the purpose of altering the law as it was held in Hobbs v. Lowell, 19 Pick. 405, ar,d preventing, thenceforth, the establishment of ways by dedication of land *344therefor and the assent thereto by towns. The decision in that case was, that such dedication and assent constituted a legal way, which a town was bound to keep in repair, and was liable in damages for an injury received by reason of a defect therein, in the same manner and to the same extent as if the way had been established in the statute mode. Since the St. of 1846, ways cannot be legally established by such dedication and assent, so as to render towns liable to repair them. Yet, by the third section of that statute, towns are liable to damages for injuries caused by defects in such ways, if they do not close up the entrances to them, or give other sufficient notice that they are dangerous.
A way by dedication is a way over land which the owner thereof has dedicated to the use of the public for a way. So the" court describe it in Hobbs v. Lowell, before cited, and in Hemphill v. Boston, 8 Cush. 196, 197; and such, we understand is always its meaning. See Wellbeloved on Highways, 41, 42, State v. New Boston, 11 N. H. 409 ; Cole v Sprowl, 35 Maine, 169, 170; State v. Carver, 5 Strob. 218; Commonwealth v. Kelly, 8 Grat. 634. We therefore hold that, in St. 1846, c. 203, a “ way opened and dedicated ” means a way over land dedicated by the owner thereof to the use of the public as a way. But the way, in the present case, was not opened and dedicated to the public use by the owner or owners of the land over which it passes, and by the assent of the town thereto. On the contrary, the town took it into its own hands, for a public way, and made repairs on it, under a mistaken belief, probably, that it had done what was necessary to make it a legal public way. The St. of 1846, therefore, does not apply to this way. Jennings v. Tisbury, 5 Gray, 75. If it did, the town would be liable to damages for an injury received by reason of a defect in it, because they gave no notice that it was dangerous. It follows, •that the jury were correctly instructed, that if the town had made repairs on the way within six years before the plaintiff’s injury, they were bound to keep it in repair and could not be permitted to deny the location of it.
We think the jury were also correctly instructed, that survey*345ors of highways, within their respective districts, are duly constituted agents of towns to repair ways, and that repairs thereof, made by them, are made by the town. The Rev. Sts. c. 25, require that all ways in a town shall be kept in repair at the expense of the town, and also confer the authority and impose the duty on surveyors, and on surveyors only, to keep them in repair. We therefore have no doubt that a “ town has made repairs,” within the meaning of § 26 of that chapter, when they are made by the officers appointed by the town for that purpose; this being the only mode of repairing ways, which the law prescribes for towns.
One other exception is taken to the instructions given to the jury, to wit, that the defendants were liable, if the line of the way was not indicated by any visible objects, &c. We are of opinion that these instructions were fully warranted by the decision in Coggswell v. Lexington, 4 Cush. 307, and that they were expressed with great care and^ precision.
Exceptions overruled.