
    Middlesex Canal Corporation versus Robert M’Gregore.
    The Court mil grant a new trial where evidence has been rejected by the judge, which was proper to have been received under one count of the declaration; although such count was not relied on nor read by the plaintiff at the trial, a general verdict having been given for the plaintiff on all the counts.
    Case upon several promises to pay the toll of certain rafts of the defendant’s, which the plaintiffs aver to have been transported through their canal. The first count was indebitatus assumpsit for 686 dollars, 85 cents, for the transportation of a certain specified quantity of timber and plank. At the last November term, the plaintiffs filed, by consent, two new counts on two promissory notes given by the defendant for the amount of the same toll, and for producing a survey bill of the said lumber from a sworn surveyor.
    [ *125 ] * Upon the general issue pleaded to all the counts the cause was tried before Parker, J., at the last November term. The defendant rested his defence altogether upon the insufficiency of the canal, and offered to prove that, in consequent e of an advertisement, by the agent of the canal, that it was sufficient for the transportation of lumber, he was induced to enter his rafts in the canal, and give the notes in the case to secure the toll when the same should have passed through; that the canal proved altogether insufficient, and burst out in one place, so that the defendant was obliged to take the principal part of his lumber out of the canal, and transport it by other means; and that, from the insufficiency of the canal, he was delayed more than five times the usual term, and put to great expense.
    This evidence was not admitted, and a verdict was returned for the plaintiffs, subject to the opinion of the Court upon the right of the defendant to prove the facts stated as above in defence of this action. If the Court should be of opinion that the evidence was improperly rejected, the verdict to be set aside, and a new trial granted; otherwise judgment to be rendered according to the verdict.
    
      Note. It appeared that only the two new counts were read at the trial, although the others remained in the case.
    
      Thatcher, for the plaintiffs.
    
      Livermore, for the defendant.
   Curia.

On inspecting the record, the declaration contains several distinct counts, and a general verdict for the plaintiffs is taken upon all the counts. If there is any one count on which the defendant’s evidence, which was rejected, would have been proper, the verdict must be set aside, because legal and relevant evidence was rejected. The first count is indebitatus assumpsit for toll for the transportation of a certain quantity of lumber through the canal. On this count it was necessary for the plaintiffs to prove the quantity of lumber, for the transportation of which they were entitled to demand toll; and it was clearly competent for the defendant to prove how much lumber he in fact transported, for which he was liable to pay toll. To prove this fact, the evidence, which he offered, and which was not admitted, was legal and proper. The verdict, therefore, must be set aside, and a new trial granted .

*If the plaintiffs would confine their objection to the [ * 126 ] admissibility of the defendant’s evidence to the two last counts, they should have entered the verdict on those counts only, and not have taken a general verdict. 
      
      1) [Vide Dodge & Al. vs. Tileston & Al., 12 Pick 328__The same defence could be made to the notes as to the claim for which they were given.—Ed ]
     