DDERALREPORTER,

vol. 41.:

tained. Whether or not his effort to get on the train moving at the rate stated was a "voluntary exposure to unnecessary danger," is a question for the Jury. As a further answer to the defenses set up by defendant, it is to be presumed that the examinatiortmade by Strong, after the death of Cotten, was under instructions of the defendant. Without any fraud or misrepresentations by plaintiff, :or anyone acting for her, Strong, the agent, demanded and received the' full amount of the premiums due, and paid the same over to the defendant; upon the understanding that the amount of the policy would be paid within the specified time; in all of which he appears to have acted in good faith towards both parties; This, it seems to me, should be held as a waiver of all the other defenses based on facts known to· Strong aithe tIme he collected the premium, and now setup, and binds the defendant, whose refusal to pay the amount of the policy must have arisen from: some of such facts. A88OCiaticnv. Beck, 40 Amer.Rep.296; Oshkosh Gas-Light Co. ·v. Germania Fire Ins. Co., 37 N. W. Rep. 819; Insurance Co. v.Raddin, 120 U. S. 7 Sup. Ct. Rep. 500; 1 Wood, Fire Ins. 50,51; Sclumeman v. Insurance Co., 16 Neb. 404, 20N. W. Rep. 284. The result is that the motion of the defendant .for an instruction by the court to the jury to return a verdict in its favor must be overruled, and the motion of the plaintiff for an instruction by the court to thejury to return a verdict in her favor the sum of $3,000, with 6 per cent. interest thereon, according to the policy,must be sustained.

WILDER tl. BOARD OF COU1i:TY COM'RS RIO· GRANDE COUNTY.

(Oircuit Court, D. ColMaao.February 24, 1890.)
1.COUNTIES-INDEBTEDNBSS-CONSTITUTIONAL LIMIT-PLBADING.

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In an action against a county on warrants given in satisfaction of a judgment, an answer which alleges that at the time the judgment was rendered the count;! debt exceeded the constitutional limit, without stating that such debt exceeded the limit at the time of making the COIl tract on which the judgment W811 rel'1dered, . is demurrable. A judgment against a county is not oonclusive as to the legality of the debt on which it was rendered, where it does not appear that the question of the lesalit7 of the debt was put ill issue by the pleadings.

SAMB--J"UDGMENT-ElI'lI'BOT,

At Law. On demurrer to answer. J. L. Jerome, for plaintiff. Ira J. BloCYmfleld a.nd D. J. Burns, for defendant.
HAJ,LETT, J. This is·an action to recover the sum of 15 county warrants issued by the defendant· in payment of certain judgments. Seetion 527, Gen. St. C010., 'provides that, upon a judgment against a board of county commissioners, no execution shall be issued, but the

WILDER tI. BOABDO; COUNTY COM'RS

GRANDE COUNTY.

518.

same shall be collected by a tax; and then there is the following pro. viso: "That nothing in this section shall prohibit the county commi&-' sioners from paying such judgment by a warrant upon the county ury." The warrants upon which this suit is founded were issued under this section, and probably they are of the same force and effect as the judgments to which they refer. Defendant answers: "That at'the time of the rendition of the said several judgments in the plaint specified, and the issuance of the warrants herein sued upon, in part payment of the same, the aggregate amollnt of the indebtedness of the said Rio Graude county for all purposes, exclusive of the debts contracted prior to the adoption of the present constitution of the state of Colorado, exceeded six dol· lars for each one thousand dollars of assessed vaiuation of the taxable property ot said county; and that the question of incurring such indebtedness, or of any indebtedness whatever, on the part of said county, had at no time prior to the rendition of said several jUdgments, or to the issuance of the said rants in payment thereof, been submitted to the qualified electors of said coun· ty at a general election, or at any election, or in any manner whatsoever; nor was the said indebtedness upon which the said several judgments were based, for which the warrants sued upon were issued in part payment, or any part thereof, contracted for the purpose of erecting necessary public bL \ldings, or for making or repairing pUblic roads or btidges." And plaintiff demurs to the answer on the ground that defendant is concluded of any such defense by the judgments upon which the rants were issued. In the Lake County Cases, 130 U. S. 662, 674, 9 Sup. Ct. Rep. 651, 654, the supreme court held that section 6, art. 11, of the state constitution, is a limitation of the powers of the legislature and of the counties in the state to create indebtedness in excess of the amounts therein specified, ,and all debts and contracts over and above the amount therein mentioned are void. The answer seems to proceed upon the assumption that the date of the judgments, or of the warrants on which the suit is founded, is to be taken as the time of contracting the indebtedness, withhi the meaning of the constitution. This is clearly wrong. In civil actions on contract, the contract necessarily precedes thp, judgment; and the question under the constitution is whether, at the time of making the contract, the indebtedness of the county exceeded the constitutional limit. That question is not presented by this answer. The answ(=lr should refer to the county's financial condition at the time when the indebtedness was contracted for which the judgments were obtained. If, however, the indebtedness of the county was in excess of the constitutional limit when the judgment debts were originally contracted, plaintiff maintains that the county is none the less concluded' by the judgments; and this is a matter of great difficulty. When the constitutional Emit has been reached, the county has no..further capacity to make contracts out of which additional burdens may arise. As to such contracts, it'maybe said that the countybas andtbe disability extends to all forms of action, whether by parol, by deed, by confession of judgment, or any other device. As to natural persons Unv.41F.no.9-33

derdisabilil1i such lis married women,: infants, and persons1l.on,comp08, therule'isioot (Bank v. Partee, 99 U. S. in general; it ma}"be true that thecapacity:of all such persons to'$ake a contract is. fully :determiqed by thejudgment of a court of competent jurisdiction:nponsuchcontract. In the cas,e of a Inunicipalcorporation acting in a representative capacity, with limited powers, a different rule IllaYQP!4ip, for reasons which it is not now nepessary, to considt'rat leQgtJ;l" 'In Broumsville v. Loa{j'Ue, .129 U. S. 493, 9 Sup., Ct. Rep. 327, where ·theact authorizing a tax to pay the bonds had been repealed, and the bonds were void, 'the remedy by mandamua was denied.Under the authority of that decision. when no issue has been made as to of the county to contract the indebtedness" it seems to doul;ltfu1 whether a judgmenhgainst a county void obligation can be, flnforced in any form. When in the pleadings.the capacity of the county to contract the indebtedneSll is put in issue,' the'judgment is con-, elusive. Har8hman v. Knox'Co.j 122 U. S. 306, 7S 11P' Ct. Rep. 1171. As}o howe,ver, the nothing ¢oncerning the judgissued\ and therefore are unable to deCIde; and, mdeed,lponly, to conSIder whether, the judgments against the county, without reference to the pleadings or proceedings in the several·'cliusas "in which they were entered, shall be taken to preclude the connty: froth saying that· the indetedness now; represented by the warrants, in suit was void under the constitution; Inmy,opi'nion,.the judgments referred to in the 'warrants in suit have not,that effect'ex vi termini, under all circumstances to forbid' inquiry as to the capacityoftlie;,eounty to contract the debts. This answer, however, is defective 'in not showing the origin of the indeb,tedness for which the judgments Vliereentered, and in not showing whether the indebtedness of the county was then in"excess of the constitutional limit,anClaIso in not showing something of the record on which each of the several judgments is founded.' For these reasons the:,demurrilr will be sustained. . '
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BARtl. SClloOL-DISTBIcr.r No.7, VALLEY <;J0UNTY.
(O(rcuU 001llrl, D. NebraBka. February 21. 1890.)

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,' · :",. " TM ,paYment'of interest on sooool'bonds does not estop the school-district fr()U/. de,nYIIi,g their. !her6 Itis:liOt shown that the om,cars, and people of tbe di&., .: ,trl().at tl,:l.\l: fJ.ll!, the issuaI1-ca IIond nle of t,he

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.tbepeople of a school·dl5trict to vote that;( ·honels be 1', 'l'pBcl1lc purpQs,e, suc4 So vote40es not make the 'bondS even in the haiiC180f an ml10cent pUl'ohaser. ',,"
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