Dissenting Opinion - ANDERS, C. J. [2 Wash. of the mortgagee. The note secured by the mortgage was overdue, and both it and the mortgage were in the possession of Andrew Merchant, to whom they had been transferred by the original mortgagee for value. No steps were taken in the pending proceedings, in accordance with the provisions of the statute or otherwise, to contest the right to foreclosure or the amount due; but instead of this, action was brought to recover the property then in the custody of the sheriff and of the law by reason of the default of the plaintiff herself. It is true the testimony of the defendant shows that, before the sale of the goods under the foreclosure proceedings, he was told by the plaintiff's attorney that, as matter of fact, the note had been paid, and that the attempt to foreclose was a fraud between Robert and Andrew Merchant. But, under the circumstances, he was not bound to relinquish the property on a mere statement of that character, nor, indeed, would he have been justified, as an officer charged with the performance of an official duty, in so doing. It is disclosed by the record that the foreclosure and sale were substantially in conformity to the statute, and the sheriff should not be held responsible in the action for the goods sold by him, unless it be shown that his acts were wrongful and unauthorized by law. The action was tried and judgment rendered against the defendant in the lower court, on the theory that the note and mortgage of Mrs. Franklin had been paid, and that, therefore, the defendant had become a trespasser by seizing and disposing of the goods in question. But I am strongly of the opinion that all the testimony upon that point, taken together, fails to show more than that Robert Merchant promised Mrs. Franklin to pay her note before maturity, and that he failed to do so; and it requires no argument to demonstrate the proposition that a promise to pay is not payment, either in fact or in law. It also seems to me that all the testimony concerning the alleged fraudulent transactions between the Jan. 1891.] Dissenting Opinion - ANDERS, C. J. Merchants and the agreement made by Robert Merchant with Mrs. Franklin to pay the note was wholly irrelevant, and should have been excluded by the court. Nor do I think the defendant waived any of his legal rights by going to trial, without objection, upon the pleadings, as made up by the parties to the action. The question of conspiracy between the Merchants and Stewart to defraud plaintiff was set up in her reply to defendant's answer. It tendered an immaterial and collateral issue, and I am unable to perceive how the denial of such allegations could, in any way, justify the introduction of testimony touching the same which was objected to by the defendant. In an equitable action against Robert and Andrew Merchant to compel a surrender and cancellation of the note and mortgage, such testimony would have been relevant and proper; and it may be that the facts and circumstances would have warranted the court, in that event, in granting the relief demanded. But in this action the sole question to be determined was whether or not the taking and selling of plaintiff's chattels by the defendant was wrongful, and not whether some other person or persons were guilty of perpetrating a fraud upon the plaintiff; and, in my judgment, the plaintiff should have been confined to the trial of the former question. For the foregoing and other reasons that might be given, I am of the opinion that the judgment of the court below should be reversed, and a new trial granted. HOYT, J., concurs. Argument of Counsel. [2 Wash. [No. 114. Decided January 26, 1891.] ROBERT TRAVIS, ALFRED LEE, J. S. MAXFIELD, SMITH APPEAL EXCEPTIONS -COUNTY COMMISSIONERS -ILLEGAL CON TRACT- ESTOPPEL. Where judgment is given on the pleadings in an equity case, an appeal may be maintained therefrom, though no exception is taken. Although the contract of county commissioners for the building of a county road may be illegal, and the issue of warrants in payment therefor unauthorized in excess of a certain amount, the payment of such warrants will not be enjoined at the suit of taxpayers who themselves signed a petition for said improvement, had knowledge of the contract at the time it was made, and stood by and permitted the work to be carried on without objection until the road was completed. Appeal from Superior Court, Clallam County. The facts are fully stated in the opinion. Hays & Plumley, for appellants. A court of equity will never lend its aid to an inequity. 2 Story, Eq. Jur. § 959; Clark v. Dayton, 6 Neb. 203; Brown v. Merrick County, 18 Neb. 355. The appellees are estopped from now questioning the propriety of paying the warrants. 2 High, Inj. § 1260; Sleeper v. Bullen, 6 Kan. 300; Weber v. San Francisco, 1 Cal. 455; Hitchcock v. Galveston, 96 U. S. 341. John Trumbull, for appellees. A board of county commissioners can exercise no powers which are not in express terms, or by fair implication, conferred upon it by law, and whenever the board ventures beyond the scope of its powers its acts are void, and not binding upon the county. Martin v. Whitman County, Jan. 1891.] Opinion of the Court-SCOTT, J. 1 Wash. 533; Hodges v. City of Buffalo, 2 Denio, 110; Thomson v. Lee County, 3 Wall. 327; Wells v. Supervisors, 102 U. S. 625; Lebeher v. Board of Commissioners, 9 Mont. 315 (23 Pac. Rep. 714); Dill. Mun. Corp. (3d ed.) §§ 457, 89. The act of February 2, 1888 (Laws 1887-8, p. 195), is a limitation upon the commissioners limiting the amount that can be expended for road purposes for each year, and all warrants or appropriations over that amount are void. People v. Hall, 8 Col. 485 (9 Pac. Rep. 34); People v. May, 9 Col. 80 (10 Pac. Rep. 641), and 9 Col. 414 (15 Pac. Rep. 36); Catron v. Board of Commissioners, New Mex. Feb. 1889 (21 Pac. Rep. 60); People v. May, 9 Col. 404 (12 Pac. Rep. 838); Schwartz v. Wilson, 75 Cal. 502 (17 Pac. Rep. 449); Crampton v. Zabriskie, 11 Otto, 601; Dill. Mun. Corp. (3d ed.) §§ 25, 89; Clark v. City of Des Moines, 19 Iowa, 199 (87 Am. Dec. 423). The opinion of the court was delivered by SCOTT, J.-It is alleged by the complaint in this case that appellant W. C. Williams entered into a contract with appellants Robert Travis, Alfred Lee and J. S. Maxfield, the board of county commissioners of Clallam county, and purporting to act in behalf of said county therein, to improve a certain highway or county road; and that said commissioners issued to said Williams county warrants therefor in the sum of $13,800.95. It is further alleged that the total valuation of the assessable property of said county at that time was but $501,267, and that there was no money in the county treasury for the purpose of building roads, nor was any thereafter appropriated for such purpose. The appellees brought this action as taxpayers of said county against said Williams and said county commissioners, and also against Smith Troy and W. L. Church, the auditor and treasurer of said county, to enjoin the payment of the warrants. The defendants answered, alleging Opinion of the Court-SCOTT, J. [2 Wash. good faith upon the part of Williams and the commissioners; that they believed they had a lawful right to enter into the contract; and that the same was made by the commissioners in response to numerously signed petitions by the residents and taxpayers of said county, and that the appellees themselves signed one of said petitions, had full knowledge of the contract at the time it was made, and of all the work performed thereunder during the pendency thereof; that they stood by and permitted said work to proceed without objection until the road was completed and warrants issued. No reply was filed to these matters alleged in the answer, and both parties moved the court for judgment on the pleadings-the plaintiffs on the ground that the matters set up in the answer constituted no defense, and the defendants on the ground that, the plaintiffs having failed to reply, the affirmative defense must be taken as true, and that it was sufficient. The court rendered judgment for the plaintiffs, and the defendants appeal. The first proposition we are met with is, that no exception was taken by appellants to the action of the superior court in the premises. But as this is an equity case, and as it was submitted to the lower court upon the facts as shown by the pleadings, we think an appeal from the judgment on the facts can be maintained, although an exception was not taken. Had these matters been stricken from the answer the case would be different, and an exception would be necessary, but the court simply held them, while true, to be immaterial, and rendered a decree for the plaintiffs. Under the allegations of the complaint, which are taken as true for the purpose of this hearing, the contract in question was illegal, and the issue of the warrants in question, or the greater portion of them at least, was clearly unauthorized. While the county commissioners have a |