
    Cage vs. Hogg.
    ÍThe legislature have the power to change the direction of a donation at anytime before the donation has been appropriated or rights acquired under it.
    Leroy H. Cage, the chairman of the county court of Smith county, on the 6th day of November, 1838, instituted an action of assumpsit in the circuit court of Smith county against Harvey Hogg, the agent of the commissioners of common schools. The plaintiff declared that the defendant had received the sum of five thousand dollars, which belonged to him, as chairman, and withheld it. The defendant pleaded non-assumpsit, and the following facts were spread upon the tecord, as exhibiting the matters in dispute between the parties:
    
      “It is agreed in this cause that by virtue of an act passed on the 2d day of January, 1839, ch. 75, Smith county ceived as her proportion of the internal improvement fund in Middle Tennessee the sum of-- dollars, which said sum was paid over to the bank agent for Smith county on the-day of--. The interest arising thereupon, together with the interest arising from the comm'on school funds, was paid over from time to time by said bank agent to the clerk and treasurer of the board of common school commissioners for Smith county. J.W.Hardwicke,in May, 1832, who was the hank agent for Smith county, made a settlement with commissioners appointed by the court for that purpose, when it appeared by the result of that settlement that there was in his hands the sum of three thousand seven hundred and forty-eight dollars and sixty-three cents of internal improvement fund, he having kept a separate account of the internal improvement fund in his hands. About the 17th of August, 1835, the school fund and internal improvement fund for Smith county were amalgamated, or in other words, the said agent ceased to keep separate accounts of these funds. About the-day of ■-the whole amount of the fund so amalgamated was paid over to the defendant, as agent of the board of common school commissioners of Smith county, where the same has remained ever since, except such portions thereof as he may have paid over to the superintendent of public instruction for the State of Tennessee.
    Upon these facts it is submitted to the' court whether, by virtue of the several acts of the general assembly, passed 2d day of January, 1830, ch. 75, 14th day of January, 1830, common schools, 17th December, 1831, ch. 43, sec. 8, and the various acts of the assembly upon the subject of common schools and internal improvement funds of Smith county, and by virtue of the 10th section of the 11th article of the constitution, the internal improvement fund originally belonging to Smith county has, by the provisions of said laws and the constitution, been converted into the common school fund of the State, so as to become a part- thereof; or whether Smith county is still entitled to said fund as the internal improvement fund belonging to her as such. If the court shall be of opinion that the law is in favor of the plaintiff, it is agreed that the court may render judgment in favor of the plaintiff for the sum of three thousand eight hundred and forty-six dollars and forty-eight cents, and that the costs be adjudged according to the discretion of the court, subject to an appeál to the supreme court by either party.”
    On the 20th day of December, 1838, the parties appeared by their attorneys, and argument being heard upon the case, it was adjudged by the court that “the plaintiff take nothing by his suit, and that the defendant recover against the plaintiff the costs.”
    From this judgment of the circuit court, A. Caruthers presiding, the plaintiff prayed and obtained an appeal in the nature of a writ of error to the supreme court of the State at Nashville.
    
      M’Lain for plaintiff,
    cited Wally's heirs vs. Nancy Kennedy, 2 Yerg. 554: Officer vs. Young, 5 Yerg. 320.
    
      Trimble, for defendant.
   Turuev, J.

delivered the opinion of the court.

This is an action brought by the chairman of the county court of Smith against the agent of the board of common school commissioners to receive that portion of the internal improvement fund belonging to Smith county, which, by the act of 1831, ch. 43, sec. 8, was appropriated to the common school fund for that county.

The action is sought to be maintained under the provision of an act passed by the legislature in 1837, ch. 83, which authorizes the county court of Smith to make such disposition of the internal improvement fund belonging to said county as to them shall seem proper, and to prosecute actions against any person having any of said funds in his hands who shall refuse to pay them over. Now the question is not as to the constitutionality of the act, but as to what constitutes the internal improvement fund of Smith county. That it cannot be that which was appropriated by the act of 1831 to the common schools of Smith county, is self evident, unless that act be unconstitutional. That it is, has not been and could not be contended for with any hope of That the legislature have the power to change the direction of a donation to a county before it has been appropriated, or light acquired under it, we think too plain a proposition to require argument. This is all that has been done by the act of 1831, and we therefore think that the circuit court committed no error.

Judgment affirmed.  