[Baldwin v. Patton.] which entitled him to recover, and directed them to find for the defendant. Baldwin, for plaintiff in error, cited 7 Serg. & Rawle 510; 10 Serg. & Rawle 439; 1 Whart. Dig. 207; 5 Peters' Cond. Rep. 479; 2 Wheat. 63, 257; 1 Watts 533; 2 Kent's Com. 392; 7 Watts 413; s Watts 21. Williston, for defendant in error, cited 4 Watts 410; 1 Wharton 408; 19 Serg. & Rawle 226; 2 Dall. 262. The opinion of the court was delivered by SERGEANT, J.-The plaintiff is the assignor under a voluntary assignment, and brings this action of assumpsit for money had and received against the defendant, who was the attorney for the assignees, and also a purchaser from them, of all their interest in the county of Bradford. The plaintiff alleges that the defendant procured from the assignees a transfer of the property in Bradford county for the sum of 200 dollars, when in fact it was worth a great deal more money; and offered to prove that, since the purchase of the property, besides money received before, as attorney for the assignees, he had received other large sums out of the trust-fund, amounting to 1000 dollars, beyond what he paid the assignees. The objection raised by the defendant to the maintenance of this action, seems to us to be insuperable, whatever might be our inclination to sanction the submission of the plaintiff's allegations to a jury. In the first place, whatever moneys the defendant received before his purchase, seem to have passed into his hands as attorney for the assignees, and afterwards in his own right, and not for the use of the plaintiff, or on his account, in any instance. Then the remedy against the defendant, for any imposition on the assignees in his purchase, if such existed, or to call him to account for moneys obtained by these means, would seem to belong to the assignees, in whom the whole property has been vested in trust for the creditors in the first instance. The plaintiff has no right to meddle with the property, or to bring an action for the recovery of it, or its proceeds, into whose hands soever they may come. If the assignees refuse or neglect to perform their duty, the remedy of the plaintiff is against them, to cite them to settle their accounts, when they would be made responsible for all that was lost by their neglect to discharge their duty, or for their participation in any waste of the property. And perhaps a case might occur in which a cestui que trust inight use the names of the assignees in a proceeding against a third person. But the plaintiff founds his right on the allegation that the assignment did not take effect, because the assignees never gave notice under the assignment, and that the giving this notice was a condition precedent to the vesting of the estate in the assignees. Whether [Baldwin v. Patton.] notice was given by the assignees or not does not appear. In a suit against them, perhaps they would be bound to prove such a fact if requisite; because, the plaintiff could not prove a negative. But in a suit against a third person, this reason does not seem to apply; the defendant being no more conusant of the notice than the plaintiff. But we do not conceive this to be a condition precedent. It would leave the property in a strange state of uncertainty, if the title remained in abeyance till the assignees chose to give notice. They could not, by refusing to give notice, defeat the rights of the creditors in the fund. It seems to be a condition subsequent, or rather a duty imposed on the assignees, by the acceptance of the trust, and for the non-performance of which they would be responsible to the cestui que trust. Nor can we see any thing to justify the assertion, that the trust was abandoned. On the contrary, active proceedings seem to have been had under it from time to time, as was shown by the plaintiff. If it appeared, that the creditors were all paid, there would be more colour for the plaintiff's right, by virtue of his resulting interest, to pursue the assets in the hands of those who were accountable for them. But no evidence whatever has been given to show this. There may yet be creditors unpaid: and if there are, the funds ought to be distributed amongst them, and the plaintiff has no claim till they are satisfied. The result of the whole case seems to be, that it is the assignees only who can collect the funds of the assignor, and are authorized to sue for them; and to them the plaintiff must look for the recovery of any surplus due to him on account of what they did receive, or might or ought to have received under the assignment. Judgment affirmed. Harvey against Thomas. 10w 63 171 199 10 W 63 25 SC $471 The act of the 5th May 1832, authorizing the construction of lateral railroads f 26 SC1 40 to connect private property with the public improvements, is not unconstitu tional. A, being the owner of a coal mine, proceeded, under the act of 5th May 1832, to ascertain the amount of damage which B would sustain by reason of the location of a railroad across his land; and the matter was proceeded in, so that a verdict was rendered for the amount of damage in favour of B. A then entered upon the land of B, and made the road, before a judgment was entered on the verdict: Held, that though the proceedings thus had by A did not furnish a justification of the trespass, yet they protected him from vindictive damages. The docket entry, upon proof of the loss of the other part of the record, is competent evidence: and parol proof may be given of the contents of that part of the record which is lost. [Harvey v. Thomas.] The act of the 5th May 1832, does not contemplate that the petitioner for a road to the public works, should own land at the point of connection; he may use his road there consistently with the interests of the owners of the land. ERROR to the common pleas of Luzerne county. Jameson Harvey against Freeman Thomas. Trespass quare clausum fregit, brought to August term 1839. On the 5th May 1832, an act of assembly was passed, authorizing the location and construction of lateral railroads connecting with the public improvements, and prescribed the mode of obtaining the same; in pursuance thereof, the defendant, Freeman Thomas, petitioned the court of common pleas for the appointment of viewers to ascertain -the amount of damage Jameson Harvey would sustain by reason of the railroad which he proposed to make through his land. The viewers reported that he should pay 100 dollars damages; from this report Harvey appealed; and it was afterwards, to wit, 15th April 1835, tried by jury, who found 65 dollars damages. On the same day a rule to show cause why a new trial should not be granted was entered. On the 28th May. 1835, rule discharged. Nothing further was done until the 3d August 1839, when a rule was entered to show cause why judgment should not be entered on the verdict as of 28th May 1835. 14th November 1839, rule discharged, and the court directed judgment to be entered as of 3d August 1839, when the jury fee was paid; and at the same time, the plaintiff, Freeman Thomas, obtained a rule to bring the 65 dollars, the amount awarded by the jury, into court and there paid the same; it having been previously tendered to the defendant, Harvey. On the trial of this cause, it appeared that all the record of the foregoing proceeding was lost, except the docket entry, and the defendant offered to prove, by parol, the contents of the lost papers, to which the plaintiff objected, and the court overruled the objections and sealed a bill of exceptions. The plaintiff asked the court to instruct the jury upon these points: 1. There being no judgment on the verdict in the proceeding of Thomas v. Harvey, it was no justification of the trespass complained of in this suit. 2. That defendant is a trespasser unless his road is made precisely upon the ground laid down in his petition and specification. 3. That defendant had no right to occupy any part of the plaintiff's land, at the terminus of the road, for loading boats. 4. That the act of 5th May 1832, is unconstitutional. And at all events it was not intended to apply to any case but that where the petitioner for the road had the right of landing, or owned the land at the terminus of the road. And the defendant asked the court to instruct the jury, that the [Harvey v. Thomas.] proceedings and assessments of damages given in evidence are conclusive upon the plaintiff, and he cannot recover in this suit. Jessup, president, instructed the jury, that inasmuch as the defendant had not proceeded to have a judgment entered upon his verdict, and the money tendered before this suit was brought, the proceedings were not a justification to him; but that the record of them, as they stood, was evidence in mitigation of damages, and in this point of view it was permitted to go to the jury. The second point the court answered in the affirmative, and submitted the fact to the jury. In answer to the third point, the court said, that it was not necessary to the enjoyment of the road by the defendant, that he should be either the owner of the soil or of the right of landing or loading his boats on the navigable waters at the termination of the road: his right would be to reach the navigation, and that being a public highway, he would, when there, only be responsible for any injury he might do to the property or right of others. The court also instructed the jury, that the act of the 5th May 1832, is constitutional and binding: and directed them to find for the plaintiff the amount of actual damage which he had sustained by the erection of the road; but not for any consequential damage arising from injury to his landing, &c. Verdict and judgment for 25 dollars damages, and costs. Campbell and Butler, for plaintiff in error, cited Str. Purd. 146; 11 Serg. & Rawle 319; 1 Saund. 298; 6 Bac. Ab. 609; Co. Lit. 303; 3 Whart. 484; 1 Penn. Rep. 394; 1 Bald. 222; 1 Yeates 167; 9 Serg. & Rawle 22; 3 Watts 219; 1 Whart. 137; 2 Whart. 539. Wright and Woodward, for defendant in error, cited 1 Penn. Rep. 464; 12 Cons. Deb. 211; 6 Binn. 509; 3 Yeates 153; 2 Dall. 304. The opinion of the Court was delivered by GIBSON, C. J.-It is proper, in limine, to say, that as no part of the evidence has come up with the record except what is contained in the bills of exceptions, we know not whether tender was made before or after judgment, or whether the point propounded in the first prayer arose in the cause at all. If it did not result from the evidence, the judge might omit to charge on it; and as error is not to be intended, we would have been bound, had he not noticed it, to suppose that it had not a legitimate place in the cause. But he did notice it, and gave the direction prayed for, with a very proper qualification, that though the proceeding in the common pleas did not furnish a justification of the trespass, it at least took away all pretext for vindicatory damages. And the same may be said of the second prayer, which was answered affirmatively, by directing that if judgment had been entered on the verdict, if tender had [Harvey v. Thomas.] been made in pursuance of it, and if the road had been constructed according to the requisitions of the act, there would have been a full and perfect defence; for from this, the jury must have inferred that there could be no defence without the concurrence of all of them. Besides, any omission on this head could do the plaintiff no harm, for the jury actually found for him; and every thing beyond that had relation to the quantum of the damages. On that ground alone, an error, if there were one, would be immaterial. The third prayer was properly rejected. Nothing in the statute or in reason, requires a petitioner to be the owner of the land at the entrance of the route into the public thoroughfare. It was not contemplated that he should have a depot at the junction; and there is neither reason nor enactment for the plaintiff's principle. The road might, therefore, be lawfully laid on the ground which it occupies; and as to intrusion, there is no evidence legitimately before us, nor is there any thing even in that which has been put upon our paper books irregularly, to show that the defendant had occupied any part of the plaintiff's ground on the pool, or prevented him from using it as he pleased. The railroad was carried into the stream on a platform; whence the coals were discharged by a shute into boats lying parallel with the shore. What the intervening space was, it is not material to inquire: the plaintiff's right of exclusive possession extended not one inch beyond low water mark, and if there was a trespass at all, it was committed on the public. An unreasonable occupancy of the pool, might have subjected the defendant to a prosecution for a nuisance; but as to the plaintiff's right in it, the case stands on the principle of Shrunk v. The Schuylkill Navigation Company, 14 Serg. & Rawle 71. The defendant might occupy any part of the stream without being answerable to the plaintiff or any one else, for preventing boats from coming to lie at the landing. The most material point in the cause, is that which involves the constitutionality of the statute on which the defendant's right is founded; but it is one about which little need be said. If there is an appearance of solidity in any part of the argument, it is that the legislature have not power to authorize an application of another's property to a private purpose even on compensation made, because there is no express constitutional affirmance of such a power. But who can point out an express constitutional disaffirmance of it? The clause by which it is declared that no man's property shall be taken, or applied to public use, without the consent of his representatives, and without just compensation made, is a disabling, not an enabling one; and the right would have existed in full force without it. Whether the power was only partially restrained for a reason similar to that which induced an ancient lawgiver to annex no penalty to parricide, or whether it was thought there would be no temptation to the act of taking the property of an individual for another's use, it seems clear that there is nothing in the constitution As to this passage, see 2 Past. p. 2479 vib. x. 283 where Gibson 7.2 roti, is from this position. |