Middlesex Canal Corporation versus Robert M'Gregore, 2 Tyng 124

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 ]