conveyance of the easement. To the same effect is the case of Knox v. Railway Co., (Sup.) 12 N. Y. Supp. 848. In the case of Tallman v. Railroad Co., 121 N. Y. 119, 23 N. E. Rep. 1134, the court used this language: "When the defendant began to construct its railway in front of the plaintiff's lots, he could have commenced an action in equity against it, and restrained it until it had made compensation to him for the rights and easements which it took from him, or until it had acquired them by condemnation proceedings. Story v. Railroad Co., 90 N. Y. 122. In that way he would, at least in the theory of the law, have been indemnified for all the damage he would suffer by reason of the construction of the railway. Instead of taking his remedy by an equitable action at that time, he could have taken it at any time afterwards, during his ownership of the lots, with the same result." The respondents refer us to cases, however, holding that the owner of land waives his right to an injunction against a railway company if he permits it, without objection, to construct its track upon his land, or to construct it in a street upon which his land abuts, so as to deprive him of his special easement therein. Some of these authorities except cases in which it appears that the writ is essential as a last resort. The rule is laid down in High on Injunctions (volume 1, 3d Ed., § 643) as follows: "As in all cases of the exercise of the strong arm of equity by injunction, the right to the relief may be lost by one's own negligence and delay in seeking protection; and where the owner of land over which a railway has been constructed has stood quietly by, and neglected to insist upon compensation at the time his land was taken, and has waited until the road was in full operation before asserting his rights, he will not be permitted to restrain its operation. In such case an injunction, if granted at all, should only be allowed as a last resort, and after all ordinary means of relief have proved ineffectual." This rule authorizes an injunction after all ordinary means fail,-as a last resort. This same qualification to the general rule as above stated is mentioned by the court in Hentz v. Railroad Co., 13 Barb. 646, cited by defendant. Booth, St. Ry. Law, § 189. Upon principle, and in the light of authority, our conclusion is that a lot owner does not waive his right to an injunction by mere silence and inaction at the time his land is taken; and, further, if the lot owner is without any adequate remedy at law, it is the duty of the court to enjoin the company's use of his property, unless, within a specified time, it will pay the damages assessed. It follows that the court below erred in not granting the injunction prayed, upon the conditions named. Judgment reversed, and the case is remanded.

MINER and SMITH, JJ., concur.

(21 Nev. 462)

In re NICKALS ESTATE. (No. 1,385.) (Supreme Court of Nevada. Oct. 12, 1893.) APPOINTMENT OF ADMINISTRATOR-PREFERENCE— GUARDIAN OF MINORS.

1. Where all the parties applying for letters of administration are equally qualified and competent, the court has no discretion, but must appoint the applicant that, under the statute, has the prior right.

2. Except as a matter of comity, in excep tional cases, a guardian of a minor appointed in one state is not recognized as such in another state.

3. Section 2724, Gen. St., providing that letters of administration shall issue to the guardian of a minor, instead of to the minor himself, refers to a guardian appointed in this state, and not to one appointed in some other state.

(Syllabus by Bigelow, J.)

Appeal from district court, Eureka county; A. L. Fitzgerald, Judge.

Petition of Isabella M. Loucks that letters of administration with the will annexed of the estate of W. W. Nickals, deceased, be granted to petitioner and Marshall Rich. From an order denying the petition, and ap pointing G. W. Flick as such administrator, petitioner and said Rich appeal. Reversed.

The other facts fully appear in the following statement by BIGELOW, J.:

The testator, a resident of Eureka county, in this state, died October 25, 1892, leaving, him surviving, a widow and six minor children, his mother, and a sister, Mrs. Isabella M. Loucks. By his will, executed in 1889, the widow was appointed executrix, but it is alleged that she left this country for Germany, in September, 1892, and has never since been heard of. The children and the testator's mother are residents of Oakland, Cal., and Mrs. Loucks is a resident of Eureka county, Nev. The widow having failed to take out letters testamentary, Mrs. Loucks, on March 20, 1893, made application that letters of administration with the will annexed issue to herself and one Marshall Rich, who she asked to be joined with her in the administration. The testator's mother also asked that they be appointed. G. W. Flick, a resident of Oakland, Cal.. who had been appointed by the courts of California guardian of the minor children, opposed this application, and asked that letters be issued to himself, upon the ground that as such guardian he had the preferred right thereto. Upon the hearing, it was ordered that letters issue to him, and Mrs. Loucks and Rich appeal.

Rives & Judge, for appellants. Baker, Wines & Dorsey and R. M. Beatty, for administrator.

BIGELOW, J., (after stating the facts.) The only question involved in this appeal is, who has the preferred right to letters of administration upon the estate of the deceased? There is no dispute concerning the facts, and there is neither allegation nor proof that

It

either of the applicants is not duly qualified to discharge the duties of the trust. consequently becomes simply a matter of statutory construction, as the right to the appointment is given by law, and the court has, under these circumstances, no discretion concerning it. Coope v. Lowerre, 1 Barb. Ch. 45; In re Estate of Pacheco, 23 Cal. 480; Estate of Bauquier, 88 Cal. 302, 310, 26 Pac. Rep. 178, 532; Hayes v. Hayes, 75 Ind. 395, 398; 1 Woerner, Adm'n, § 242.

Gen. St. § 2719, provides the following order for the appointment of administrators: "First. The surviving husband or wife, or some person as he or she may request to have appointed. Second. The children. Third. The father or mother. Fourth. The brothers. Fifth. The sisters. Sixth. The grandchildren. Seventh. Any other of the kindred entitled to share in the distribution of the estate. Eighth. The public administrator. Ninth. The creditors. Tenth. Any of the kindred, not above enumerated, within the fourth degree of consanguinity. Eleventh. Any person or persons legally competent." Section 2722: "No person shall be entitled to letters of administration who shall be: First, under the age of majority." Section 2724: "If any person entitled to letters of administration shall be a minor, administration shall be granted to his or her guardian." Section 2733: "Administration may be granted to one or more competent persons, although not entitled to the same, at the request of the person entitled to be joined with such person." Section 2734: "When letters of administration have been granted to any other person than the surviving husband or wife, the child, the father, mother, or the brother of the intestate, any one of them may obtain the revocation of the letters by presenting to the probate court a petition praying the revocation, and that letters of administration be issued to him or her." As suggested in Estate of Woods, 97 Cal. 428, 32 Pac. Rep. 516, concerning a similar statute, there is doubtless some difficulty in construing and harmonizing these somewhat conflicting sections so as to determine when the guardian of a minor will have a preferred right to letters of administration over other applicants, but we do not find it necessary to consider the matter here. It is admitted that the respondent has no right to the letters except under his appointment as guardian by the California court, and, as such, we are of the opinion that he does not come within the meaning of section 2724. Except as a matter of comity, and to a very limited extent, guardians appointed in one state are not recognized as such, or as having any power or authority, in any other state. Speaking of an English decision holding the authority of an English guardian sufficient to institute a suit for the personal property of his ward in Scotland, Judge Story says: "It has certainly not received any sanction in America in the states

acting under the jurisprudence of the common law. The rights and powers of guardians are considered as strictly local, and as not entitling them to exercise any authority over the person or personal property of their wards in other states, and upon the same general reasoning and policy which have circumscribed the rights and authorities of executors and administrators." Story, Confl. Law, § 499. The same rule applies to real estate. Id. § 504. This language is repeated and approved in Whart. Confl. Laws, § 261, and in Hoyt v. Sprague, 103 U. S. 613, 631, and is certainly the law as understood and administered in the United States. Cooley, Const. Lim. 414; Schouler, Dom. Rel. 445; Leonard v. Putnam, 51 N. H. 247. In other words, as to any other state than the one of the appointment, he is no guardian, and has no rights as such. On the other hand, we have in Gen. St. § 548 et seq., a complete system for the appointment of guardians of minors by our own courts, who would in this state be vested with all the authority that a guardian could have anywhere; and to our minds it is very clear that it was this kind of a guardian, instead of one that has no authority or responsibility, that the legislature had in mind in the enactment of section 2724, regulating the settlement of the estates of deceased persons. The statute of 1887, p. 58, authorizing the payment of money in certain cases to guardians appointed in other jurisdictions, rather strengthens than otherwise this view, as it tends to prove that without such statutory authority the guardian appointed in another state has no standing before our courts. It follows that the appellants have the preferred right to the letters of administration in this case, and should have been appointed. The order is reversed, with directions to the district court to issue letters to the appellants, upon their taking the oath of office and giving the necessary bonds.

MURPHY, C. J., and BELKNAP, J., con

cur.

(18 Colo 593) PALACIOS et al. v. BRASHER et al.1 (Supreme Court of Colorado. June 19, 1893.) BONDS-DELIVERY FILLING BLANKS AFTER SIGNATURE.

The attorney for an attachment debtor presented to defendants for signature as sureties a redelivery bond, blank as to the specific description of the property attached and its value. Defendants signed the bond and justification annexed, and gave the paper to the attorney, who signed the jurat as notary. He thereafter filled in the blanks, and delivered the bond. Held, that defendants had made him their agent to fill the blanks, and were estopped to deny his authority.

Appeal from district court, Arapahoe county.

'Rehearing denied October 2, 1893.

Action by B. Palacios, S. Rodriguez, and F. Garcia, trading as Palacios, Rodriguez & Co., against B. P. Brasher, Peter P. Egan, and George W. Brown, on a redelivery bond. Judgment for defendants. Plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

This is an action upon an undertaking given in pursuance of sections 111 and 112 of the Code of Civil Procedure to release attached property. On the 12th day of December, 1888, appellants filed their complaint in the district court of Arapahoe county, setting forth the institution by them of an action in the county court of Arapahoe county in September, 1886, against B. P. Brasher, doing business as B. P. Brasher & Co.; the issuance of an attachment therein, and the seizure thereunder by the sheriff of Arapahoe county of certain personal property of defendant; the release of the property so attached upon the execution and delivery to the sheriff of the following written instrument:

"State of Colorado, county of Arapahoess. In the county court sitting within and for the county of Arapahoe, the September term, A. D. 1886. B. Palacios, S. Rodriguez, and F. Garcia, Copartners as Palacios, Rodriguez & Company, Plaintiffs, vs. B. P. Brasher, Doing Business as B. P. Brasher & Company, Defendant. Whereas, the above-named plaintiffs have sued out an attachment in the above-entitled action in the county court within and for said county of Arapahoe against the above-named defendant, by virtue of which said writ of attachment the following described property, to wit: Four barrels of sherry, 192 gallons; three barrels of Hermitage whisky, 116 gallons; one barrel Marion county whisky, 38 gallons; one barrel Brasher's sour mash whisky, 38 gallons; six barrels California brandy, 233 gallons; one barrel Bond & Willian whisky, 381⁄2 gallons,-of the value of seventeen hundred and sixty-nine dollars, has been seized and attached; and whereas, the said defendant is desirous of releasing the said property from said attachment, according to the form of the statute in such case made and provided: Now, therefore, we, the undersigned, residents and freeholders of the county of Arapahoe, state of Colorado, in consideration of the premises, and of the releasing of said property, do jointly and severally undertake and promise to the effect that in case the plaintiffs recover judgment in said action, and said attachment is not dissolved, then the said defendant will, on demand, redeliver to the proper officer such attached property, or, in default of such delivery, that the said defendant, and we, as his sureties, will pay, or cause to be paid, to the said plaintiff the full value of the property so released. Dated this 29th day of September, A. D. 1886. [Signed] B. P. Brasher. Peter P. Egan. George W. Brown.

"State of Colorado, county of Arapahoess.: Peter P. Egan and George W. Brown, the sureties whose names are subscribed to the within undertaking, being severally duly sworn, each for himself says that he is a resident and property holder within the said Arapahoe county, and that he is worth the sum specified in the said undertaking as the penalty thereof, and over and above his just debts and liabilities, in property not by law exempt from execution in this state. [Signed] Peter P. Egan. George W. Brown. Subscribed and sworn to before me this 29th day of September, A. D. 1886. [Seal.] E. A. Clark, Notary Public." -Alleging the execution of the same by B. P. Brasher as principal, and Peter P. Egan and George W. Brown as sureties; that judgment was obtained in the county court in that action on the 15th day of October, 1887, for the sum of $662 and costs; the issuance of an execution thereon against the defendants, and a return thereof wholly unsatisfied; a demand upon the said Egan and Brown for a return of the property so released by virtue of this undertaking; and a failure upon their part to return said property, or to satisfy said judgment and costs. Egan and Brown, in their answer, admit all the allegations of said complaint except the execution of the written undertaking as set forth therein. For a further answer they allege that on the day it is shown that this undertaking purports to have been executed they signed their names to a blank piece of paper, which they are informed and believe is the same piece of paper which is alleged in said complaint to be an undertaking, but when so signed said paper was blank, and was not the instrument corresponding to the copy set forth, either in form or effect. They further allege that "they never legally authorized any person to write out the undertaking or bond over their signatures on the said blank paper, so signed by them, as aforesaid." Under the issues so joined, a trial was had to a jury, and the evidence introduced was in substance as follows: On the 29th day of December, 1886, at the Windsor Hotel, in the city of Denver, Egan and Brown, upon request of B. P. Brasher, signed their names to a certain paper, which is admitted to be the undertaking set out in plaintiff's complaint, except that it did not then contain a specific description of the property attached, or its value; that they also signed the affidavit printed on the back of said instrument as to their qualifications as such sureties. E. A. Clark, an attorney representing B. P. Brasher at that time, testifies that they objected to signing the bond in blank; that he explained to them that the amount involved would not exceed $2,000, and that, if it did exceed that amount, the bond should not be used; they then told him that they would leave the thing in his hands; that they signed the bond, and he took their verification on the back of it.

Defendants deny having any such conversation, and claim to have signed the undertaking in ignorance of what it was, and that they never authorized any one to fill any blanks, or make any additions thereto. The court below instructed the jury as follows: "And they [the defendants] say there was nothing said about any one filling out that instrument, and there was no authority given any one to fill out that instrument, or insert anything else in there but what was to be found above their signature. If you should find that to be true, and that there was no express authority given to Clark to fill in the blanks in that bond, or if you should find that these two sureties did not know that there was blanks in the bond, that they thought it was a complete instrument as they had signed it, then you must find for the defendants. I do not think there is sufficient evidence in this case for me to instruct you, under any consideration, that there could be any implied authority in Clark to fill out the bond." This trial resulted in a verdict and judgment for defendants. To reverse this judgment plaintiffs below prosecute this appeal.

Charles M. Campbell, for appellants. E. W. Waybright, for appellees.

GODDARD, J., (after stating the facts.) The only question for our determination is presented by the assignment of error predicated upon the giving of the instruction above quoted. Counsel for the respective parties have devoted most of their briefs and argument to the discussion of the question of the adequacy of an oral authorization to confer the power to fill blanks in a sealed instrument after the same is signed, and before delivery. The pertinency of this contention to this case is not readily discernible, since the instrument sued on. is not a sealed instrument, but is a parol contract, and of a class to which the strict and technical doctrine relied on by counsel for appellees is not applicable. The court below tried the case upon the theory that such authority could be conferred orally, and admitted evidence upon the question whether oral authority was given to Clark by Egan and Brown to fill the blanks with the description and value of the property attached; and submitted to the jury, as the fact upon which a recovery depended, whether such authority was expressly given; hence the pertinent inquiry is, was it error to take from the jury the consideration and decision of the question whether, under all the facts and circumstances attending the signing and delivery of the paper to Clark in its then condition, the authority to fill the blanks therein was conferred upon him by implication? In the case of Inhabitants of South Berwick v. Huntress, 53 Me. 89, Kent, J., in discussing an instruction embodying, in substance, the law applicable to this case, said: "We think that

when a party signs a bond, and delivers it to another, not stipulating or expecting that the paper will be returned or afterwards exhibited to him, but be delivered to the obligee when perfected, and when he so delivers it there are blanks in it to be filled up be fore it can be perfected, and he knows the fact, those blanks may be filled out without any further knowledge or assent on his part." And, also, on page 96: "It is, after all, a mere question of assent. Now, consent may be implied, as well as expressed, and, when fairly and legally inferred, it is actual and effective consent, as much so as when direct authority is shown by parol." The supreme court of the United States has announced the same principle in several cases, notably that of Drury v. Foster, 2 Wall. 24. Therein the court say: "We agree that by signing and acknowledging the deed in blank, and delivering the same to an agent, with an express or implied authority to fill up the blank, and perfect the conveyance, its validity could not well be controverted." In the case of State v. Young, 23 Minn. 551, the court, in discussing the implied authority of the board of county commissioners to fill the penalty in an official bond, no express authority being given, says: "Such authority may be implied from circumstances. It may be implied from the facts proved, when these facts, all taken together, and fairly considered, justify the inference." See, also, White v. Duggan, 140 Mass. 18, 2 N. E. Rep. 110; Smith v. Crooker, 5 Mass. 537; Bank v. McChord, 4 Dana, 191; McCormick v. Bay City, 23 Mich. 457; Bartlett v. Board, 59 Ill. 364; City of Chicago v. Gage, 95 Ill. 593. Numerous other cases might be cited in support of the rule that authority to fill blanks in such an instrument may be implied, and that, when fairly inferable from the conduct of the parties and circumstances surrounding the transaction, is as effectually given as if expressly conferred. Many of these decisions are put upon the doctrine of estoppel in pais; ostensible authority being the equivalent of actual authority. It certainly is consonant with justice and fairness that when a person as a surety signs an incomplete undertaking, and places the same in the hands of another, to use for a particular purpose, and with ostensible authority to fill in any needed matter to make the same effective, and the same is accepted in its completed form by the obligee, without negligence on his part, that such surety ought to be estopped from controverting its validity to the prejudice of such obligee; and we think that the facts in this case most strongly invoke the application of this rule. The blank, as presented to Egan and Brown for their signatures, contained a printed condition that fully advised them of the extent of the obligation they were assuming. The insertion of the penalty did not affect the extent of such obligation. The printed recitals in the paper as presented were to the effect

that certain property of their principal had been attached, and the condition and essential portion of the contract in terms provided that, in consideration of the releasing of said property, they undertook and promised that if judgment was obtained in the attachment suit, and the attachment sustained, on demand they would redeliver such property, and, in default of delivery, they would pay the full value of the property so released. They were bound to know the contents of the paper they signed, and cannot evade liability by pleading want of such knowledge. To avail themselves of such a defense it must appear that they were prevented from reading the paper by some trick or artifice of the obligee. Johnston v. Patterson, 114 Pa. St. 398, 6 Atl. Rep. 746. They were also bound to know whether there were blanks that must be filled to accomplish the purpose for which such undertaking was intended. They are presumed to have known the law, and knew that to accomplish the purpose of their principal it was necessary for him to procure an undertaking in compliance with the statute. With this knowledge they signed the undertaking, and placed it in his agent's hands, as we have seen, with implied authority to fill the blanks, and otherwise perfect it, for the purpose of releasing the attached property. Counsel for appellees place stress upon the fact that Clark, the attorney of Brasher, made the addition, and that the appellees, by delivering the bond to him when signed, conferred no authority upon him to do so. This claim is not tenable. He was their agent, as well as the agent of the principal. Willis v. Rivers, 80 Ga. 556, 7 S. E. Rep. 90.

We think the court erred in giving the instruction complained of. The evidence clearly establishes the fact that the appellees conferred the power upon their principal and upon his attorney, Clark, to fill in the specific description of the property attached, and its value, if that was necessary to make the undertaking effective. It is unnecessary to decide whether the undertaking as signed was not sufficient before the additions were made therein; and, since we are of the opinion that upon the undisputed facts the appellants were entitled to recover, the judgment is reversed, and cause remanded, with directions to assess damages in favor of appellants. Reversed.

(3 Colo. App. 448)

JONES v. HENSHALL et ux. (Court of Appeals of Colorado. Sept. 25, 1893.)

DOCUMENTARY EVIDENCE COMPETENCY OF WIT

NESS.

1. In an action by an executor on a note, it appeared that decedent and one of the makers of the note owned jointly the stock in a corporation. The assets of the corporation were sold and applied by decedent, who held all the stock but one share to his own use.

Held, that the ledger of the corporation, not being a book of original entry, was inadmissible to show payment of the note by such sale.

2. In an action by an executor on a note, the maker is incompetent to testify as to the transactions out of which the note was given, under Gen. St. § 3641, relating to evidence as to transactions with decedents.

Error to district court, Arapahoe county. Action by Morton Jones, administrator of Aaron M. Jones, against James Henshall and Harriet B. Henshall. Judgment for defendants. Plaintiff brings error. Reversed.

Teller & Orahood, for plaintiff in error. Browne, Putnam & Preston, for defendants in error.

BISSELL, P. J. The administrator of the estate of Aaron M. Jones brought this action against the defendants in error, James Henshall and his wife, to recover the sum of $3,000 alleged to be due on a promissory note executed by them on the 2d of June, 1884, and found among the assets of the decedent. The note was payable one year after date, and had been due some five years at the time of Jones' death. There was no controversy about the note, but the defendants set up by their answer a payment during Jones' lifetime. Their first plea was a general one of payment. The second was likewise, in legal effect, an averment of satisfaction, and set up substantially that James Henshall and Jones were the joint owners of the stock of the Henshall Queensware Company. The assets of the company were subsequently sold to other parties for a fixed sum, which was received by Jones, and applied to his own uses. It was averred that the receipt of this money by Jones, and the appropriation of it, amounted to a satisfaction of this $3,000 note, since it was in fact and legal effect an appropriation by Jones of the money which would have been coming to Henshall out of the sale of the stock of the queensware company. The suit thus turned on the proof of this averred payment of the note through the transaction of the sale of the assets of the company. To support the plea, the defendants offered in evidence certain pages of the ledger, which made a part of the set of books of the queensware company, which contained entries tending to show Jones' receipt of the consideration which the purchasers paid for the stock of the company. They also offered divers deeds of certain property which had passed between Henshall and Jones in his lifetime, at about the time of the original purchase of the queensware stock. During the progress of the trial, James Henshall offered himself as a witness, and undertook to testify concerning the matters in dispute. was allowed to give evidence touching certain matters which were relevant to the issues, and undoubtedly competent if he had the right to give evidence concerning them. As to the exact transaction out of which the

He