[Book IV. been obtained from him by false pretenses, misrepresentations or fraud,' the State or other public authority may maintain an action for its recovery.

§ 922. Same Subject-How far Public may follow its Funds. -In the case of private agencies' it is well settled that wherever money of the principal comes or is placed in the hands of the agent which it is his duty to pay over to his principal or to apply in any other designated manner, the law impresses upon that money, for the benefit of the principal, a trust for the performance of the object contemplated, which can only be satisfied by its devotion to that object, unless the principal directs it otherwise. While the money remains in the hands of the agent, he cannot shake off the trust by any manner or number of alterations or changes in its specific character, unless all trace of it be completely lost, for it is well settled that equity will follow the fund through any number of transmutations and preserve it for the true owner as long as it can be identified.3

And this trust is not confined to the period during which the money remains in the hands of the agent, but follows it into the hands of whomsoever it may come, until it reaches the possession of one who is a bona fide holder for value without notice of the trust. It is not necessary to charge a third person as trustee that he should be an active wrongdoer or should attempt to defeat the trust; or that he had notice of the trust at the time the money came into his hands, if he receives notice in time to protect himself. It is enough that he is not a bona fide holder for value without notice.'

The same principles have been applied to public officers and agents. Thus where one Vincent, who was known to his credi

1 See People v. Denison, 80 N. Y. 656.

2 For a fuller discussion of this subject, see Mechem on Agency, § 780, et seq.

Farmers' &c., Bank v. King, 57 Penn. St. 202, 98 Am. Dec. 215; Van Alen v. American National Bank, 52 N. Y. 1; National Bank v. Insurance Co., 104 U. S. 54.

Farmers' &c., Bank o. King, 57 Penn. St. 202, 98 Am. Dec. 215;

Van Alen v. American National
Bank, 51 N. Y. 1; National Bank v.
Insurance Co., 104 U. U. S. 54; Jau-
don v. City Bank, 8 Blatchf. (U. S.
C. C.) 430; Fifth National Bank v.
Village of Hyde Park, 101 Ill. 595, 40
Am. Rep. 218; Riehl v. Evansville
Foundry, 104 Ind. 70; Baker v. New
York Bank, 100 N. Y, 31, 53 Am.
Rep. 150; Gage v. Stimson, 26 Minn.
64.

5 The State may follow her funds

tor, Wolffe, to be the State treasurer, endorsed and delivered to his creditor in payment of his own private debt, a draft payable to himself as treasurer, it was held that the creditor was chargeable with notice of the official character of the funds and became liable to the State for the money. "The money," said the court, "was trust money in Vincent's hands, bore on its face the impress that it was trust money; Vincent held it as trustee, and, by aiding him in its misapplication, Wolffe constituted himself trustee in invitum, co-trustee with Vincent, and liable to account for its misappropriation.'

1

Where, however, the officer becomes the debtor of the public, the money becomes in effect his, he may deal with it as he pleases, and the public may resort only to him and his sureties for repayment. So the State may not ordinarily sue to recover its funds until default has been made in paying them into the State treasury, nor can the State recover funds belonging to a county.'

§ 923. Public may recover Property wrongfully disposed of. -So where the property of the public has been sold or disposed

into lands unlawfully purchased with them: State v. Bevers, 86 N. C. 588, citing Cook v. Tullis, 18 Wall. (U. S.) 332; Cooper v. Landis, 75 N. C. 526; Beam v. Froneberger, Id. 540; Younce v. McBride, 68 N. C. 532.

Wolffe v. State, 79 Ala. 201, 58 Am. Rep. 590, citing Lee v. Lee, 67 Ala. 406; Milhaus v. Dunham, 78 Ala. 48; National Bank v. Insurance Co., 104 U. S. 54; Shaw v. Spencer, 100 Mass. 382, 1 Am. Rep. 115; Skinner v. Merchants' Bank, 4 Allen (Mass.) 290; Cobb v. Wanemaker, 78 Penn. St. 501. The court distinguish the case at bar from Van Dyke v. State, 24 Ala. 81, and dissent from Perley v. County of Muskegon, 32 Mich. 132, 20 Am. Rep. 637, and State v. Keim, 8 Neb. 63. The former of these two cases is easily distinguishable from the one at bar, as

will be seen from the text; but the Nebraska case, in the writer's opinion, judging from the meager statement of facts given in the official report, is not consistent with reason or authority, if it was intended to hold that the State could not recover the money at all. In this case the State treasurer had, in violation of law, loaned $2,000 of the State funds to the defendants. The State declared upon the transaction as upon a deposit by it to be repaid upon demand. The court held that as the State had never authorized or ratified the loan, the transaction set forth in the petition constituted no cause of action.

2 Perley v. County of Muskegon, 32 Mich. 132, 20 Am Rep. 637.

State v. Rubey, 77 Mo. 610.

4 State v. Rubey, 77 Mo. 610; Perley v. County of Muskegon, 32 Mich. 132, 20 Am. Rep. 637.

of by its officers or agents, without authority of law, the State or other proper authority may maintain an action for its recovery.' And this recovery may ordinarily be had, not only against the immediate party acquiring it, but also against his grantee.' As has been seen, all persons dealing with a public officer must, at their peril, ascertain the extent of his authority, and one who claims title through the act of such an officer is bound to see that his powers were adequate to the transaction undertaken.'

§ 924. State not estopped by unauthorized Acts of its Officers. "The State," it is said in a recent case, "can not be estopped by the acts of any of its officers, done in the exercise of a power not conferred upon them, any more than it can be bound by contracts made by its officers which they were not empowered to make. The powers of all officers are defined and conferred by law, and of these all persons who deal with them must take notice. Acts done in excess of the powers conferred are not official acts."

But while the State may thus not be estopped by the unauthorized acts or by the non-action of its officers, it may, it is held, be estopped in some cases by an express grant.'

925. State entitled to Priority of Payment. In analogy to the prerogative right of the crown at common law, it is held in most of the States that the State has, except where an express lien has intervened, a prerogative right to have priority in the payment of its claims out of the estates of debtors."

'Day Company v. State, 68 Tex.

526.

2 Day Company v. State, 68 Tex.

526.

3 Day Company v. State, 68 Tex. 526.

4 Day Company v. State, 68 Tex. 526.

5 State v. Brewer, 64 Ala. 287; Pulaski v. State, 42 Ark. 118; United States. Kilpatrick, 9 Wheat. (U. S.) 735.

Lake Shore, &c., Ry. Co. v. People, 46 Mich. 193; Detroit v. Weber, 26 Mich. 284; Attorney-General .

Supervisors, 30 Mich. 388; Attorney.
General v. Marr, 55 Mich. 445.

7 See Magee v. Hallett, 22 Ala, 699; Carver v. Astor, 4 Pet. (U. S.) 1.

Orem . Wrightson, 51 Md. 34, 34 Am. Rep. 286; State v. Bank of Mary. land, 6 G. & J. (Md.) 205, 26 Am. Dec. 561; Jones v. Jones, 1 Bland's Ch. (Md.) 443, 18 Am. Dec. 827; Commonwealth v. Logan, 1 Bibb (Ky.) 529; Commonwealth v. Lewis, 6 Binn. (Penn.) 266.

This right, however, is denied in New Jersey: Middlesex County 0. State Bank, 29 N. J. Eq. 268, s. c. 30

Id. 311.

BOOK V.

OF SPECIAL REMEDIES AND PROCEEDINGS.

CHAPTER I.

OF MANDAMUS TO PUBLIC OFFICERS.

926. Purpose of this Chapter.-The most important of the special remedies or proceedings which the law provides to secure the due performance of his duties by a public officer is the ancient proceeding by the writ of mandamus.

Mandamus lies, as is well known, not only against public officers, but against private officers in certain cases, and against pub