charging its duties, is a defense to an action brought by the de jure officer to recover the same salary.

3. SALARY-DE FACTO OFFICER ENTITLED TO.

One who holds a judicial office under a certificate of election issued by the secretary of state can maintain mandamus against the state auditor to compel the payment of the salary incident to the office, notwithstanding the fact that his election is contested in a pending

action.

Error to the District Court of Arapahoe County.

THESE proceedings were instituted in the court below by James Glynn against John M. Henderson, state auditor, to compel the payment of the plaintiff's salary as district judge, an office to which he claimed to have been elected, and the duties of which he was discharging. He obtained judgment, and the defendant sued out a writ of error. The facts are fully stated in the opinion of the court.

Mr. H. B. JOHNSON, for plaintiff in error.

Mr. H. RIDDELL, for defendant in error.

REED, J., delivered the opinion of the court.

Proceeding by mandamus to compel payment of salary of defendant in error, as district judge of the thirteenth judicial district. At the general election of 1891 defendant in error and one Charles L. Allen were candidates for the office. Upon the 2d day of December following, the state board of canvassers met at the capitol, and the votes of the judicial district were canvassed, defendant declared to have been elected, and the certificate of his election duly issued by the secretary of state. The defendant qualified and entered upon the discharge of the duties of such office, and has since been, and still is, in possession of the office, and in discharge of his duties. Charles L. Allen, the opposing candidate, claiming that the defendant was not legally elected to the place, and that he was, instituted proceedings to contest the title to the office. Such proceedings are now pending and undetermined in the supreme court. Such contest having been instituted and undetermined, plaintiff in error refused to draw warrants for the payment of the salary of the defendant. Application was made to the district court for a writ of mandamus to compel the payment. As a defense to the application, the respondent set up the existing contest, and alleged want of title to the office and the irregularity of the incumbency. The writ was allowed in the district court, and the matter brought into this court by writ of error for review. Defendant in error having been, by the board of canvassers, declared elected to the office, and having qualified, entered upon, and continued to perform the duties of the office, and no judgment of ouster having been entered against him, he was not only in under color, but, holding all the legal evidence of rightful occupancy, has been and is de facto judge of the judicial district, and will so remain unless ousted by judgment in proper proceedings. The defense interposed is unavailing in this action. Title to the office, as between the contestants, cannot be determined in a collateral proceeding, nor in this form of action. The district court could not, nor can this court, legally take notice of the existence of the contest for the office. When a person is in actual possession of an office under an election or commission, and exercising its duties under color of right, his title to the office cannot be tried or tested on mandamus. This is the established doctrine, both in England and the United States, and might be supported by almost innumerable decisions. See Dill. Mun. Corp. §§ 674, 678, 679; High, Extr. Rem. § 49; People v. New York, 3 Johns. Cas. 79; People v. Stevens, 5 Hill, 629; In re Gardner, 68 N. Y. 467; Duane v. McDonald, 41 Conn. 517; People v. Detroit, 18 Mich. 338; People v. Head, 25 Ill. 325. In England, King v. Mayor, etc., of Winchester, 7 Adol. & E. 215; Queen v. Councilors of Derby, 7 Adol. & E. 419; King v. Mayor, etc., of Oxford, 6 Adol. & E. 349; King v. Mayor of Colchester, 2 Term R. 259. The only motive of the state auditor in re

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sisting payment was to protect himself, and protect the state, against double payment of the same salary. Under existing facts and the authorities, both he and the state would be amply protected in paying the salary to the incumbent. That he is judge de facto, in possession of the office and in the discharge of his duties, under color of an election, and holding all the evidence of being there rightfully, is admitted or unquestioned. In Terhune v. Mayor, 88 N. Y. 251, it is said: "It is no longer open to question in this state that payment to a de facto officer, while he is holding the office and discharging its duties, is a defense to an action brought by the de jure officer to recover the same salary." See People v. White, 24 Wend. 540; People v. Cook, 8 N. Y. 67; Lambert v. People, 76 N. Y. 220; Dolan v. Mayor, 68 N. Y. 278; McVeany v. Mayor, etc., 80 N. Y. 185; McManus v. City of Brooklyn, (City Ct. Brook.) 5 N. Y. Supp. 424; Auditors v. Benoit, 20 Mich. 176; State v. Clark, 52 Μο. 508; Westberg v. City of Kansas, 64 Mo. 493; Steubenville v. Culp. 38 Ohio St. 23; Shannon v. Portsmouth, 54 N. H. 183; Commissioners v. Anderson, 20 Kan. 298. This seems to be the general doctrine in most of the states, -in two or three, notable in the state of Maine, the reverse has been held,-but they can only be regarded as exceptions to a general rule, which appears to be well founded in reason and justice. It follows that the judgment of the district court should be affirmed.

Affirmed.

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LUSK, PLAINTIFF IN ERROR, V. PATTERSON ET AL, DE

3. INFANTS-INCAPACITY OF. Infants are incapable of consenting to anything prejudicial to their inheritance, and any consent given can be retracted after becoming of age. Their guardians have no power to bind them in such

matters.

Error to the District Court of Arapahoe County.

PLAINTIFF in error was plaintiff below. He was for some years (and perhaps still is) a lawyer engaged in practice in Washington, D. C. The suit was brought to recover $6,000 and over for professional services.

Prior to the year 1864 John S. Fillmore was an assistant paymaster of the government. In that year he died intestate, leaving an estate principally in land in the city of Denver, and leaving as heirs, his widow, Elizabeth M., and two sons. At the time of his death he was indebted in a large amount to the government for moneys that had come into his hands in his official capacity. Elizabeth M. (the widow) married Jeremiah Kershow. Two sons were the issue of such marriage. In 1868, Mrs. Kershow was appointed administratrix of the estate of her former husband, Fillmore, and acted as such until her death in 1876. Mrs. Kershow, by will, left her entire estate to her husband, Jeremiah. He died testate in 1882. After his death the two sons of Fillmore and the two sons of Kershow became the owners of the estate left by Fillmore. Some time after the death of Fillmore, the date does not appear, but subsequent to her marriage with Kershow, Elizabeth M. employed the plaintiff to effect, if possible, a settlement with the government.

By the terms of their agreement plaintiff was to receive as compensation twenty per cent of the amount that he succeeded in reducing the government claim against Fillmore. It appears he succeeded in reducing it $30,069.31, and claimed $6,013.96 for such services. On the 4th of September, 1874, Elizabeth M., as administratrix, executed and filed in the probate court a writing acknowledging the correctness of the claim and consenting that the claim be allowed against the estate; and on the same date W. C. Kingsley, probate judge, allowed the claim "to be paid in due course of administration of said estate and be classed in the fourth class of claims against said estate." The claim remained unpaid and in this condition, at the time of the death of Mrs. Kershow (administratrix). After her death, C. B. Patterson, defendant in error, was appointed administrator of the esstate of Fillmore and Mrs. Kershow and guardian of the two Fillmore boys, and Thomas M. Clayton and J. Henry Kershow were executors of the estate of Jeremiah Kershow after his death in 1882, and J. Henry Kershow was the guardian of the Kershow boys. A difficulty having arisen between the two sets of boys, an agreement was made between Patterson, the administrator, and the executors of Kershow, by which each set of heirs was to pay one half of the indebtedness of the estate. In 1885, Patterson made his final settlement as administrator. All other indebtedness had been paid. It is alleged that Patterson, at the time of the settlement and his discharge, represented to the probate court that plaintiff's claim had never been prosecuted to judgment; had not been continued from term to term as required by law, and by such representation procured its dismissal for want of prosecution.

This suit was brought in the district court against Patterson and the sons of Fillmore, who had attained their majority, to collect the one half of the original claim of $6,000 and over, which one half with interest amounted to over $5,000 at the time of bringing the suit.

It will be observed that the allowance of the claim against the estate at the instance and request of the administrator occurred July 25, 1874; the settlement of the estate and discharge of Patterson in 1885. This suit was commenced in July, 1887. Various defenses were interposed, several of which it will not be necessary to notice. That considered important and conclusive of the case is the eighth-in effect, that the allowance of the claim against the estate was erroneous; that it was the individual debt of Elizabeth M. Ker