Gray et al. v. The State, ex rel. Mills. does not, therefore, follow that if these suits had been upon the bonds of the several persons whose appointments were held void, the same thing would have been decided, or that the question would have arisen. The case of Thomas v. Burrus, supra, not only decided that such appointment was void, but held that the surety was not estopped from showing it. The court said the doctrine of estoppel "presupposes a valid or legal obligation, and we do not know any authority, and reason certainly is against the position, that a party is estopped by any recital contained in an instrument from showing, that the instrument containing it is absolutely null and void," and concluded by saying that, if the court had no power to accept the bond, its acceptance fixed no liability upon the surety. It is clear that the cases cited do not support the court's conclusion, and, so far as we know, no case does. If the instrument is invalid, of course it can not work an estoppel, but its invalidity can not be shown by disputing its recitals. It must otherwise appear. It did not otherwise appear in such case, and therefore we do not feel like following it. On the other hand, several authorities support the conclusion we have reached. In Cutler v. Dickinson, 8 Pick. 386, where there was no evidence of the administrator's appointment except such as appeared from the bond, it was held that the obligors were estopped to deny his appointment. The case of Shroyer v. Richmond, 16 Ohio State, 455, was a suit upon a guardian's bond. The sureties insisted that the guardian's appointment was illegal. The court held that they were estopped, and said: "By executing this bond, they obtained for their principal the possession and control of his ward's property, and can not now be permitted to escape liability to account therefor, by denying the recitals of their own bond. They are estopped to do so." The case of Fridge v. The State, 3 Gill & Johnson, 103, was a suit upon a guardian's bond, in which the surety urged Gray et al. v. The State, ex rel. Mills. the invalidity of the principal's appointment as a defence, and it was held that he was estopped. The court say: "Owen Dorsey having given his bond, in which he is stated to be the guardian of E. A. K., and having obtained possession of her property, it would not, in a suit against him, have lain in his mouth to deny that he was guardian, in the very face of the recital in his bond, or to set up any supposed irregularity in obtaining the appointment; the recital in the bond being evidence as against him, that he was guardian. Nor does it lie in the mouth of his surety, against whom the recital is equally evidence." Norton v. Miller, 25 Arkansas, 108, was a suit upon a guardian's bond, and the invalidity of the appointment was urged as a defence. The court held that although the appointment was irregular, it having been made in the wrong county, the principal and his sureties were estopped by the recitals in the bond to raise the objection. The case of Iredell v. Barbee, 9 Ired. 250, was a suit upon the bond of the guardian of an insane person. The law did not authorize the appointment unless it had been found by a jury that such person was a lunatic or an idiot, and, as it was not so found, it was insisted that the bond was void. The court said: "It is true, the court had not power to appoint King the guardian of Mrs. Fann and authorize him to take her estate into his possession, but the defendant will not be heard to make this objection; he concurred in the act; his bond solemnly asserts that. ** And after King has taken the estate into possession and wasted it, it is not for him to say, that it was unlawful, and, therefore, that he is not bound by his undertaking deliberately entered into." These cases, we think, decisive of the question under discussion. It is true that in some of them appointments had been irregularly made, but this fact does not impair the force of such cases as authority upon the question. The obligors in such cases were estopped, not because of an irregular appointment, but because the bond recited the fact that an Gray et al. v. The State, ex rel. Mills. appointment had been made. In the case first above cited there was no proof of an appointment, and in the case last above cited the court was not authorized to appoint, yet it was held that the makers of such bonds were estopped to deny the fact of appointment. These cases are very analogous. Again: In Collins v. Mitchell, 5 Florida, 364, it was held that the sureties upon a sheriff's bond were estopped to deny that their principal was sheriff when the bond was made, though he was dead, the principal's name having been signed by another. If dead, of course he was not sheriff; still the sureties were bound. And we think the appellants are bound, though their principal had not in fact been appointed the guardian of the relator. The appellants also refer us to the following cases in support of their position, viz.: Pryor v. Downey, 50 Cal. 388; Perry v. Brainard, 11 Ohio, 442; Higginbotham v. Thomas, 9 Kan. 328. We have examined them and find that no question of estoppel was involved in either of them. Each was an action of ejectment. In the first, title was claimed through an administrator's sale; in the others, through guardian sales. In the first, it was held that the sale was void because the pretended administrator had not been appointed; in the last, because such guardian had not been appointed; and in the other, because the sale was made after the ward arrived at full age. In none of them did the persons making the sales have any authority to make them, and therefore no title could be derived through them. This is in accordance with what was decided in Coon v. Cook, supra, and is in entire harmony with the conclusion we have reached. Upon principle and upon authority, the ruling of the court below was right, and the judgment should therefore be affirmed. PER CURIAM.-It is therefore ordered that upon the fore Robertson v. The Terre Haute and Indianapolis Railroad Company. going opinion the judgment be, and it is hereby, in all things affirmed. Opinion filed at May term, 1881. Petition for a rehearing overruled at November term, 1881. No. 8170. ROBERTSON v. THE TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY. NEGLIGENCE.-Railroad.-Negligence of Co-employee.-Brakeman.--Train Dispatcher.-Injury to a brakeman upon a train en route, by reason of a collision with another train moving in an opposite direction, and which was the result of the negligence of the train dispatcher, whose duty it is to control the movement of trains, affords no right of action against the railroad company for the injury. The brakeman and train dispatcher, though many miles apart, and with distinct duties, are nevertheless coservants in the accomplishment of the same general object. From the Vigo Circuit Court. S. B. Gookins, G. C. Duy and W. H. H. Russell, for appellant. J. G. Williams, for appellee. MORRIS, C.-The appellant brought this suit to recover damages for an injury alleged to have been received by him while in the service of the appellee as a brakeman on one of its trains. To the appellant's complaint the appellee filed a general denial. The cause was submitted to a jury for trial. The appellant having introduced his evidence in support of his complaint, the appellee demurred to it. The appellant joined in demurrer. The court sustained the demurrer, and judgment was rendered for the appellee. The appellant assigns as error the sustaining of the de murrer. The testimony shows that on the morning of the 28th of Robertson v. The Terre Haute and Indianapolis Railroad Company. March, 1876, the appellant was in the employ of the appellee as head brakeman on its train No. 14, and that said train left Indianapolis for Terre Haute on that morning at one o'clock and forty minutes. That the regular time of said train for leaving Indianapolis was one o'clock and ten minutes A. M., but that in accordance with the rules, and regulations of the appellee, it waited at Indianapolis a half hour for train No. 19, which was due from Terre Haute. That at or near Bridgeport, some nine miles west of Indianapolis, No. 14 collided with No. 19. That without fault on his part, and in consequence of such collision, the appellant's leg was caught between the coal car and tender, and crushed and broken so that it had to be amputated. The testimony also shows that there was a side-track on the appellee's road at Bridgeport that would hold sixty cars; that there was a switch at the west end of said side-track, and that the collision took place a short distance east of the side-track. Train No. 19, running eastward from Terre Haute to Indianapolis, passed the side-track at Bridgeport, intending to run upon the side-track through the switch at its east end. That it could have run upon the sidetrack through the switch at the west end, and that, had it done so, the injury might not have happened to the appellant. The testimony further showed that the appellee's train dispatcher lived at Terre Haute; that no notice was given to train No. 19 of the time at which train No. 14 left Indianapolis; that train No. 19 was not running on time, being about one hour behind time at Bridgeport, and that it was running in violation of the rules of the appellee. That No. 14, on which the appellant was brakeman, was running on time and in accordance with the rules and regulations of the appellee, and that the collision occurred without fault on the part of appellant or those having charge of train No. 14. The evidence also showed that the appellee had telegraph offices and operators at Indianapolis, Greencastle and Terre Haute. By Rule 6 of the appellee's regulations, eastward-bound freight trains are entitled to the track, but, if a half hour be |