
    Andrew Culver, Appellee, against Moses Barnet, Appellant.
    Where the plaintiff declares on a special , contract, and has other counts for money had and received, and for work and labour done, in his declaration, if the special count on demurrer is ruled give the special insufficient; on non assumpsit pleaded to the general counts, he may n(Jt contract in evidence under the general counts.
    ACTION on the case. Plaintiff declared, that at Weathersjield, Windsor County, on the 4tK of January, 1796, in consideration that he the said Andrew Culver then and there paid to the said Moses Barnet forty shillings lawful money, to his the said Barnet"1 s full satisfaction, he the said Barnet sold to the said Culver all the timber then lying on the ground, with six standing trees on the southern part of Lot No.'46. in the fourth division of lots in said Weathersfield, meaning and intending, as the plaintiff avers, that part of said lot, which lies south of part of the same lot then owned, by the said Culver, of which southern part of said lot the said Barnet then and there, for the consideration aforesaid, promised the said Culver that he should have full and free liberty to take all of said timber at any time when he the said Cidver should choose, and also that he the said Culver should have full and free liberty to clear passways necessary for the removing said timber, he the said Culver not destroying any other valuable timber; yet the said Culver hath not had full and free liberty to take said timber, but after he the said Culver, relying on the promise of the said Barnet in this particular, had been at great trouble and expense in building bridges and clearing passways to enable him the said Cidver to remove the said timber from the land on which it then was to his the said Culver’s saw-mill in said Weathers-field, and in cutting said timber and preparing the same to be removed, and thereby had rendei'ed the said timber of great value, one Josiah Fisher and one John TFilliams, who were the legal owmers of tire said southern part of the said lot, forbad and prohibited the said Culver from taking the said timber, to wit, at Weathersfield aforesaid, on the 20th of November, 1797, of which the said Barnet there afterwards the same day had due notice, and thereby became liable to pay to the said Cidver the value of the said timber so rendered valuable by the said proceedings of the said Cidver, and being so liable, then and there promised, &c. ad damnum, &c.
    
      There was
    A second count for money had and received to the plaintiff’s use;
    A third for work and labour done.
    At the last term, defendant demurred to the first count, and pleaded non assumpsit to the second and third; at which term plaintiff joined in demurrer, and to the general issue. The demurrer was then argued, and the Court decided that the first count in the plaintiff’s declaration is insufficient. And now at this term the general issue was put to the Jury.
    The counsel for the plaintiff' qow offered the following written contract in evidence in support of the second and third counts:
    " Whereas Andrtnv Culver, of Weathersfield, has this day purchased of me the subscriber all the timber now lying- on the ground, with six standing- dry-trees on the southern part of Lot No. 46. in the fourth division of lots in the town of Weathersfield, this is to give him full and free liberty to take off said timber at any time when he thinks fit, with liberty to clear passways necessary for removing said timber, he not destroying any other valuable timber.
    “ Given under my hand at Weathersfield this fourth day of January, 1796.
    “ Moses Barnet A
    
    Counsel for defendant.
    We object to tisis paper, said by the counsel for the plaintiff to be a contract, being read in evidence in support of the counts now to be considered under the general issue.
    
      If the contents of this paper display any thing of the similitude of a contract, it is a special contract. The two counts now in issue are general. A special contract can never be shewn in support of a general indebitatus assumpsit.
    
    Counsel for the plaintiff.
    The paper offered in evidence is a mere link in the chain of evidence. It shews a contract of some nature. It was at least an inducement for Culver to go to work, and raised, in conjunction with parol evidence, proving that labour was- done in pursuance of the contract ready to be produced, a promise by Barnet to pay an equitable consideration for such labour.
    Defendant’s counsel. This thing said at one time to be a contract, and at another a mere inducement to a contract, whatever it is, was expressly stated in the first count of the plaintiff’s declaration, to which there was a demurrer, and the Court decided in favour of the demurrant. The first count is no longer in esse; and now it is wished to introduce this defunct corpse of a special contract as evidence in support of general counts.
   Per Curiam.

The action now stands on the two last counts. The paper offered in evidence shews a special contract. It cannot be read in evidence in support of either of the general counts. To support general counts for work and labour done, &c. plaintiff must shew it was done at the special instance and request of the defendant, or for his benefit. This paper goes to shew a special contract to permit the cutting and removing of certain trees and timber; and the gist of the action, as stated in the first count, is the obstruction in removing them. This surely Cannot apply to either of the counts. The paper cannot be read to the Jury.

Titus Hutchinson, for plaintiff.

Charles Marsh, for defendant.-  