delivered the opinion of the court.

The petition stated that the county, by authority of an act of the General Assembly, had by its bond promised to pay to the State of Missouri for the use of the road and canal fund *398in said county $2,000, upon which bond two payments had been made, and that afterwards ( and after the maturity of the-bond) the County Court of said county, “ who held the said note for the use of the road and canal fund of said county,, and was invested by law with the control and management of the same, for value received and assigned, and transferred the said bond to the plaintiff by order of the said court, and by the endorsements of the presiding justice of the said court in writing on said bond,” and prayed judgment for the remainder of said bond and interest.

The defendant’s answer, among other things, denied that the County Court was the legal holder of said bond, or had the management, care or control of the same, or any power to dispose of it, or to transfer or assign it to the plaintiff, and averred that the pretended transfer was without authority of law and a nullity.

The answer further stated that the defendant undertook to purchase an interest in a plank road in the county, and in part payment therefor undertook to transfer and assign the bond ; and denies that. the court had any power to do so without the consent of a majority of the qualified voters of the county, and averred that the act of the General Assembly (of January 10, 1860) empowering said county to purchase an interest in said road, requires that said court first submit the question of such purchase to the legal voters of said county, and obtain their consent to such purchase, and denies that said court submitted the question of the purchase of the aforesaid interest in said road to the qualified voters •of said county, or ever obtained their consent to the purchase at any election held for that purpose, as the act required. The answer also denied that the defendant received any sufficient consideration for the assignment of the bond, and also offered to deliver up all that the defendant had received for the transfer, and prayed that the plaintiff should be required to return the bond to the defendant.

Upon motion of the plaintiff, judgment was given on the answer for the plaintiff, and the defendant appealed to this *399court. It is evident that the court below did not regard the assignment of the bond as made under the special act which authorized the purchase of the plank road, and therefore disregarded the allegations of the answer in respect to the want of an election required by the act. Those allegations set up a defence which should have been regarded if the special act alone was the authority for the assignment; and if there was no other authority for the assignment, it was error to give judgment upon the answer which contained those allegations.

It is contended here by the respondent, that the general law in respect to the road and canal fund gave to the County Court the authority to make the assignment. We think it unnecessary for the purposes of this case to give any opinion upon the question whether the County Court has power to assign the bond of a borrower of the road and canal fund ; but conceding the power of the County Court over the bond to be the same which it would have had over a sum of money belonging to the same fund, we are of opinion that it had (by the general law) no power to appropriate any part of the fund to the purchase of the plank road.

The law authorizes the County Court to apply the fund “ to the construction and improvement of roads, bridges, or canals, and to no other object.” This language is clear and explicit, and the answer shows an attempt to apply it to a different purpose than any authorized by the law, that is, the purchase of a road. It might well be for public advantage that the road should be purchased by the county, but of that we are not required to judge. The plaintiff, in procuring the assignment of the bond (which appeared on its face to be a part of the road and canal fund), treated with an agent created by law, and whose powers and duties were defined by law, and it was therefore his duty to see that the agent acted within its powers, and he can claim no advantage as an innocent assignee for value.

Judgment reversed and cause remanded.