
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1805,
    Maxwell v. Swindle.
    The action for money had and received, cannot be maintained to reco. ver money received for portage at a bridge, newly erected within the limits ot a grant of privilege to the plaintiff, the owner of a more ancient bridge.
    Motion for a new trial. Action of assumpsit, tried in Abbeville district, before Bay, J. The declaration stated, that the legislature had vested in the piain'iff, ids heirs and assigns, for 14 years, the right of receiving toll at his bridge over Saiuda river, in exclusion of every other person, for a certain distance on the said river; and that the defendant had erected a toll bridge within the prescribed limits, and had received considerable sums of money, which of right belonged to the plaintiff. There was also a general count for money had and received. It appeared that both bridges were established by act of assembly, and that the plaintiff's was first established : and that in 1801, the legislature enacted that certain persons should make a survey of the land between the said two bridges, and report thereon to the legislature, at their next sessio ). in order that it might be determined whether Swindle’s did infringe the privileges of Maxwell's bridge; and that in the mean time, Swindle’s bridge be kept open, the profits thereof to belong to him in whose favour the right should be determined, and that Swindle should receive the same rates as Maxwell. Upon this evidence, and on motion of the defendant, the district court nonsuited the plaintiff, on the ground, that the action was prematurely brought, as the legislature had not decided in favor of either party, in pursuance of the act of 1801. It was now moved to set aside the said nonsuit, on the ground, that the act establishing Swiadie’s bridge, and also the said act of 1801, as to the matter in quesbon, was unconstitutional and void.
    Gantt, and Branding, for the motion; Thomson, contra.
    
    For the plaintiff, was cited Esp. Dig. 1, 5. 2 Vern. 1011.
   The court

were clearly of opinion, that the nonsuit had been properly directed, and therefore refused to set it aside. They did not think proper to decide on the constitutionality of the acts of assembly in question, but went entirely on the insufficiency of the evidence to maintain the action. If the plaintiff, the court said, denies the right of the legislature to interfere with his privilege, after having granted the same to him, he should have considered the defendant as a trespasser, or wrong doer; and if so, he ought not to have brought his action founded on contract. On the other hand, if he inclines to consider the transaction in the light of an implied contract, he virtually acquiesces in the interposition of the legislature. But whether it beso, or not, there is no ground to support the action} for there is no proof that the plaintiff had any equitable claim to the money received by the defendant: for if the defendant had never Received the same, it might never have been paid to the plaintiff.

(Grimke, W^ties, Brevard, and Wilds, Justices,)  