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State of Arkansas vs. Little Rock, Mississippi River and Texas Rly Co.

in referring to the act of 1857, the legislature inadvertently supposed that it had been passed. Not only courts, but individuals, are bound to know the law, and cannot be heard to plead ignorance of it. The holder of the bonds can claim no indulgence on this score, and can take no advantage from the allegation, that he is a bona fide purchaser, without notice. He will be precluded from doing so on another ground, the want of legislative authority, in fact, in the town to issue the bonds in question.

Judge Dillon, in his work on corporations, paragraph 419, says: “Where the authority to act is solely conferred by statute, which is, in effect, the letter of attorney of the officer, all persons must, at their peril, see that the act of the agent on which he relies, is within the power under which the agent acts; and this salutary and sound doctrine seems to be recognized by the Supreme Court of the United States in its most recent julyments. Accordingly, the bonds issued in violation of an express statute, or Constitution, are void, though in the hands of innocent holders for value.” And the same author, paragraph 126, says: “It may be remarked, in conclusion, that this general survey of the adjudications shows some difference of opinion (chiefly in cases involving the rights of innocent holders of negotiable municipal securities), respecting the evidence of the compliance with conditions, and as to what will estop the municipality from showing a non-compliance in fact with such conditions. Yet, aside from these differences, the courts all agree that such a corporation may successfully defenii again-t the bonds, in whosesoever hands they may be, if its officers or agents, who assumed to issue them, had no power to do 50. The officers of such corporations possess no general power to bind them, and have no power except such as the legislature confers. If the statute authorizes such a corporation to issue its bonds only when the mea-ure is sanctioned by a majority of the voters, bonds

State of Arkansas vs. Little Rock, Mississippi River and Texas R’y Co.

issued without such sanction (either in fact or according to the decision of some authorized body or tribunal), or when voted to one corporation, and issued to another, are void, into whosesoever hands they may come. This is a sound and true rule of law on this subject, and the one which has had the almost uniform approval of the State courts in this country, and has recently received the high sanction of the Supreme Court of the United States.” The author, keeping in mind all the while, the distinction between the want of power to issue the bonds, and irregularities in the exercise of the power.

Mr. Justice Field, in Marsh v. Fulton County, 10 Wallace, 676, most clearly and forcibly draws the distinction between the want of special power to contract, and the general power to contract. He says: “But it is earnestly contended that the plaintiff was an innocent purchaser of the bonds, without notice of their invalidity. If such were the fact, we do not perceive how it could affect the liability of the county of Fulton. This is not a case where the party executing the instrument possessed a general capacity to contract, and where the instruments might, for such reason, be taken without special inquiry into their validity. It is a case where the power to contract never existed—where the instruments might, with equal authority, have been issued by any other citizen of the county. It is a case, too, where the holder was bound to look to the action of the officers of the county, and ascertain whether the law had been so far followed by them as to justify the issue of the bonds. The authority to contract, must exist before any protection as an innocent purchaser can be claimed by the holder.”

The bonds were held void in the hands of a bona fide purchaser for want of authority in the county to issue them. And so in this case, we must hold that the bonds of the State of Arkansas, issued by the Governor of the State, her agent, are void

Vol. XXXI.-46.

State of Arkansas vs. Little Rock, Mississippi River and Texas R’y Co.

even in the hands of innocent purchasers, because the authority to contract did not exist at the time the bonds were issued. It is the lack of power to sell, and not the abuse of power in making the sale, which renders the sale void. And upon this distinction as to contracts entered into by the State authorities without power to contract, and that other class of cases, where the power to contract existed, but may have been abused, we rest our decision.

In the first class of cases, it is no repudiation of a contract to deny its payment, because, not being a contract, there can be no repudiation of it. But in the second class, where the power does exist but has been abused, if the bonds passed into innocent hands for a valuable consideration, an obligation may rest upon the State to pay them, and it would be repudiation to refuse payment. States, as well as all other parties who act through agents, lawfully appointed and acting within the pale of their authority, are bound by the acts of such agents, even though they may be prejudicial to the interest of the party conferring the power to contract.

The question of lien upon the road and its effects need not be considered.

We must hold the bonds utterly void. The State is not responsible for them, and, as a consequence, has no debt to be secured by lien, nor has the State any claim upon the road for the coupons paid by her. The road is not responsible for them, and is under no obligation to redeem the coupons of void bonds. To pay them was an act of folly on the part of the State.

Finding no error in the judgment and decision of the Circuit Court, the same is, in all things, affirmed, with costs.

Whelan vs. Edwards.

WHELAN VS. EDWARDS.

RIGHT OF ACTION;
The distributees of an estate, or their assignee, cannot maintain an action to

recover a legacy or other chose in action due the intestate: The right of
action is in the administrator.

APPEAL from Chicot Circuit Court in Chancery.
Hon. T. F. SORRELS, Circuit Judge.
D. H. Reynolds, for appellant.
Rose, contra.

HARRISON, J.:

John Whelan filed his complaint in equity against Wakeman W. Edwards, as executor of Patrick Noonan, and William H. Sutton, William A. Rotan and William D. Hill—the sureties on his bond-alleging that the said Patrick Noonan died in November, 1862, leaving a will, by which, after bequeathing to his brother, David Noonan, $2,000, and devising to his nephew, John Noonan, his lands in the State of Texas, he gave and devised the residue of his estate, both real and personal, to his two infant sons, Henry and Patrick, and appointed the said Wakeman W. Edwards executor thereof. That said Edwards proved the will and qualified as executor; and the said Sutton, Rotan and Hill were the sureties in his bond, which was in the sum of $45,000, and on the 14th day of December, 1870, his final account current was confirmed by the Probate Court, and he was discharged.

That the said Edwards had wasted the estate, and committed gross frauds, which were specifically stated, in the execution of his trust, and the legatees, who, if the estate had been faithfully administered, would have received several thousand dollars, had received nothing from the testator's personal estate.

That Patrick Noonan, the son, died in 1864, at the age of two years, leaving as his next of kin his brother Henry Noonan,

Whelan vs, Edwards.

and Henry Noonan died in 1866, at the age of six, leaving as his next of kin his three sisters of the half blood on the maternal side, Mary Daily, since intermarried with Moses Graham, Elizabeth Daily, since intermarried with Jonathan Graham, and Margaret Daily.

And that Moses Graham amd wife, Jonathan Graham and wife, and Margaret Daily, had sold and transferred their interest in the estate to the plaintiff.

And praying that the account current of Edwards might be opened and re-stated in accordance with the true facts and justice of the case, and that the defendants be decreed to pay the plaintiff the amount that might be found due.

Edwards and Sutton were constructively summoned, but did not appear. Rotan and Hill demurred to the complaint, as not stating facts sufficient to constitute a cause of action; their demurrer was sustained, and the complaint was dismissed. The plaintiff appealed.

The administrator only, and not the distributees of either Patrick Noonan or Henry Noonan, could maintain an action for his legacy, or in regard to his interest in the testator's estate.

This doctrine, that the next of kin, or distributees of a deceased person's estate, cannot as such maintain an action for the recovery of the choses in action and personal assets of the estate, but that the suit for the same, either at law or in equity, must be by the executor or administrator, has been repeatedly declared by this court. Lemons' heirs v. Rector, 15 Ark., 437; Pryor v. Ryburn, 16 ib., 671; Anthony v. Peay, 18 ib., 24; Worsham v. Feild, 18 ib., 448; Atkins v.Guice, 21 ib., 179 ; Pope's heirs v. Boyd, 22 ib., 535; Norwood v. Holliman, 27 ib., 445; Jacks et al. v. Adair et al., ante..

As a matter of course, if the distributees could not maintain such action, their assignee cannot.

The decree of the court below is affirmed.

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