It being proved or admitted that the defendant’s vessels did pass the plaintiffs’ canal and transport the commodities, as averred in their declaration, it becomes necessary to consider the several grounds of defence.

1. It is insisted by the defendant that the right of the plaintiffs to take toll is conditional, by their act of incorporation, (St. 1824, c. 150,) depending on their fisst making a canal sufficient to admit a vessel of nine feet draught of water. By the eighth section of that act, “ said toll shall commence as soon as said canal shall be passable for vessels, as prescribed by said *282corporation,” subject to the revision or alteration of the toll by the legislature. The ninth section provides that if the corporation shall not complete a canal passable for vessels drawing nine feet of water, within three years, the act shall be void. Taking the two sections together, the provision is, that the corporation may commence taking toll at any time, within three years, if the canal is completed within that time; but if not then completed, the act shall be void. We do not understand that a compliance with all the provisions of the act is a condition precedent to the right of demanding toll in each particular case.

The construction contended for by the defendant would be attended with extreme inconvenience. The consequence would be, that the plaintiffs’ right could be drawn in question, and put in issue, every time they demanded a toll.

This canal is a public highway. It was authorized for the public use and accommodation, with authority in the plaintiffs, by § 3 of their act of incorporation, to take private property for such use. And every individual has a right to use the canal, on paying the toll. Levying a toll on a public highway, whether by land or water, is a claim of franchise; and whoever makes such claim without authority is liable to an information in the nature of a quo warranto. So if the canal is not made according to the provisions of the act of incorporation, it is the failure to perform a public duty, for which indictment or information will lie.

2. If the canal was opened, and toll claimed, and the public did not interfere, and the defendant used the canal, he thereby subjected himself to the payment of the toll. By demanding the toll, the plaintiffs claim to have complied with the conditions and provisions of their act of incorporation ; and the defendant, by using their canal, is estopped to deny their right to the payment of the toll; although they might be proceeded against by quo warranto for the repeal and dissolution of their charter, or by indictment for a misdemeanor in not keeping it in repair.

3. Another ground of objection to the plaintiffs’ right to toll is, that the defendant had no notice that they had raised the *283toll. It appears that there was the same evidence of the increase of the toll to five cents, as there was of the original establishment of it at four cents; namely, the vote of the corporation But besides; a toll implies a cash payment at each passage. If the defendant had paid cash at each passage, he would have known of the increase, or at least he could have been misled but once ; and if he continued, for a long time, to pass without inquiring, he must be presumed to have assented to the pay ment of the established toll.

4. It was next insisted that the defendant should have been allowed to go into evidence to show that he had sustained damage by means of the failure of the plaintiffs to make their canal fit for vessels of nine feet draught of water. This was offered in various forms, but they all resolved themselves into an attempt to prove damage arising from this cause.

Supposing the defendant would have a right to set off such damage as he could sustain an action for, in order to avoid circuity of action — a supposition most favorable for the defendant — we are of opinion that the evidence was rightly rejected; because we think no action could be maintained on any of the grounds stated, if the defendant had been suing the plaintiffs in a cross action for such damage. If the defendant suffered any damage from this cause, or if he had suffered damage from the filling up of the canal, and want of cleansing, by means of which he was unable to enter with a vessel of nine feet draught of water, it would have been a damage suffered in common with all other members of the community, and therefore redress must be sought by a public prosecution. Where one suffers in common with all the public, although, from his proximity to the obstructed way, or otherwise from his more frequent occasion to use it, he may suffer in a greater degree than others, still he cannot have an action, because it would cause such a multiplicity of suits as to be itself an intolerable evil. But when he sustains a special damage, differing in kind from that which is common to others — as where he falls into a ditch unlawfully made in a highway, and hurts his horse, or sustains a personal damage —- then he may bring his action. Stetson v. Faxon, *28419 Pick. 147. The case of Riddle v. Proprietors of Locks & Canals, 7 Mass. 169, seemed at first to be much like the present; but upon close examination it is found to be quite distinguishable. There, although the declaration averred a loss arising from the failure of the defendants to dig their canal of the depth required by their act of incorporation, yet it also alleged a damage from its filling up and being in want of deepening and cleansing. And Parsons, C. J., in delivering the opinion of the court, on a motion in arrest of judgment, held the action to be maintainable, not upon the ground that the plaintii? sustained damage by means of the original failure of the proprietors to make the canal of the required depth, but of their neglect of duty in not keeping it cleansed and free from obstructions after it had been so made. And again: The plaintiff in that case proved not merely a damage arising from the fact that the canal had not been made of the required depth, but also that he entered it with a raft, and that by means of the shallowness of the water, his raft grounded, and being detained there during a storm, a part of his raft was lost. In that case, therefore, there was a special damage —a damage arising from the want of due care in cleansing the canal and maintaining it in a fit condition for use — and upon these grounds the action was maintained. But in the present case, all the defendant’s offers of evidence were to show that he had sustained damage in his business from the original failure of the plaintiffs to construct the canal in the manner required by their act of incorporation. If they did fail in that particular, it was a failure of duty, by reason of which the defendant suffered no special damage peculiar to himself, but one which could be redressed by a public prosecution only. If the defendant could not sustain an action for such damage, we are of opinion that he could not claim such damage by way of set-off in this suit.

It was said that as the plaintiffs had declared in indebitatus assumpsit, the defendant had a right to show that he received less benefit than he should have received. Were this a declaration on a quantum meruit, there would have been more weight in this argument. But it is for a sum certain, due for tolls *285fixed by law, where the whole is due, or nothing; and the rule of quantum meruit does not apply. This general mode of declaring is allowable when nothing remains, on the part of the defendant, but the duty of paying a certain sum of money. 2 Stark. Ev. 95.

Judgment for the plaintiffs.