delivered the opinion of the Court. The defendant moves for a new trial, and also in arrest of judgment.
In support of the motion in arrest, he relies on the objections made to the second count. In this count the plaintiff declares, that, at the time when his mills were obstructed in their operations, the same were, during a part of the time, in the possession of sundry tenants under the plaintiff. And the defendant’s counsel contend, that for the damages arising during this portion of the time, he was, and still is, responsible to the tenants in possession, and not to the plaintiff, who had only a reversionary interest. This objection would have been in superable, had it not been alleged, that the plaintiff, in consequence of the obstructions complained of, had reduced his rents, at the request of the tenants, they threatening to quit unless he would agree to a fair reduction;1 that he did so agree, and that the tenants were satisfied with the reduction made. After such an agreement thpy could not maintain an action against the defendant, for damages occasioned by the obstructions complained of. That agreement and the plaintiff’s recovery in this case, will be a good bar to any action that may be brought in the names of the tenants.2 The complaint is of the injury suffered in the reversionary interest. No other damages were proved applicable to the second count, than those arising from the reduction of the rents, and no other damages could have been considered by the jury. It is very-clear we think, that to damages thus assessed there can be no legal objection. We consider therefore the second count as good in substance and in form. All the material facts are *353well alleged, and if the plaintiff could not recover in a special action of the case in this form, he would be without remedy. '
As to the motion for a new trial, the first objection made to the verdict is, that the evidence does not support the first count. If this were true, it would not be a valid objection, provided both counts are substantially for the same cause of action. The rule is, that where there is but one cause of action, and there are several counts, and a general verdict is returned, the Court will not arrest judgment although one count be bad, but will allow the verdict to be altered so as to refer to the good count. So if the evidence supports one count, and not the others, no new trial will be granted, but judgment will be entered according to the verdict. For as there is but one cause of action, it is immaterial on which count the verdict is taken, or whether it be general or special.1
In the present case, however, the evidence applied partly to one count and partly to the other. It was proved, that for a short time the mills were occupied by the plaintiff, and as to the damages accruing during that time,- he had a right to recover on the first count; and as to the residue of time, when the mills were in the occupation of the tenants, the evidence was only applicable to the second count, so that both counts are supported by the evidence, and are necessary.2 The verdict is general, and this is right.
The second objection to the verdict is the most important, and involves a supposed misdirection to the jury, and a mis construction of the deed under which the defendant claims.
The clause to which this objection refers is in the words following, viz. “ And the said Isaac Sanderson, his heirs and assigns for ever, has hereby a right granted him or them, to *354make and maintain a dam to accommodate said mill, below the bridge, on a level with the top of said hole drilled in said rock, and another drilled into the same rock, both having iron bolts drove into the same, and are on a level one with another ; but the said dam shall not, at any time, be built higher than the tops of said holes in said rock ”
The question of construction is, whether, under this clause in the deed, the defendant had a right to erect the dam complained of. It appeared in evidence that the defendant, after his purchase, repaired and rebuilt an old dam, which was standing at the time of the grant, removing the lower part about six feet towards the centre of the stream, by which means he had a better pond ; and that he then built a new vat to his mill, and built a new mill about two years before the erecting of the dam complained of; and that in 1820 he again repaired and rebuilt the old dam, and never had any other until he built the dam complained of, in 1822. The old dam thus rebuilt was on a level with the holes in the rock, and in all respects corresponded with and satisfied the terms of the clause referred to. It did not extend across the river, but from the bridge down to defendant’s mills, so as to raise a pond on the southerly side of the stream. On the northerly side, contiguous thereto, was Preston’s pond, and bis dam was five or six inches lower than the defendant’s The dam complained of was extended from the southeasterly side of the river to Preston’s dam, and its operation was, to raise the water in Preston’s pond, and to throw it back into the plaintiff’s raceway, and thereby to supply the defendant’s pond with water through the gap mentioned in the report. It did not regulate the height of the defendant’s pond, and therefore it is obvious that it was not such a dam as was intended by the clause in the deed referred to. The defendant, by the deed, is entitled to but one dam ; he has no right to erect one for the purpose of supplying his pond with water, and another for the purpose of regulating its height.
As to the testimony of Vose, we think it was admissible by the rules of evidence. It only went to establish a collateral fact as to the situation of the premises at the time of *355the grant.1 But in the construction of the deed we do not rely on Vose’s testimony, and it is therefore immaterial whether it is admissible or not.
Judgment according to the verdict.
See the remarks of Putnam J. in Sumner v. Tileston, 7 Pick. 206
Sumner v. Tileston, 7 Pick. 198
See Cornwall v. Gould, 4 Pick. 446; Kingsley v. Bill, 9 Mass R. (Rand s ed.) 200, n. (a).
But see Sumner v. Tileston, 7 Pick. 198, where it was alleged, that the plaintiff was seised and possessed of the mill, and the evidence was that it was occupied by a tenant at will at a rent reduced &c., and it was held, that the declaration was supported, for that the possession of the tenant was the possession of the plaintiff; Putnam J dissenting.
As to the admissibility of parol evidence in sucn a case, see 2 Stark. Evid. (5th Amer. edit.) 561, n. 1.