to show decedent's previous intention as 13. FALSE IMPRISONMENT (§ 7*)—CIVIL LIABILthrowing light on his purpose in voluntarily ITY-PERSONS LIABLE. consenting to be removed from Clutier to subject-matter, but exceeds it, an officer serving Where a magistrate has jurisdiction of the Belle Plaine. His former wife, not being a a process, regular on its face, is not liable. party to this proceeding, nor in any way [Ed. Note.-For other cases, see False Iminterested therein, was not incompetent un-prisonment, Cent. Dig. § 32; Dec. Dig. § 7.*] der Code, §§ 4604, 4607, to testify as to the Appeal from District Court, Monona Councontents of these letters which she had read ty; F. R. Gaynor, Judge. and which had been subsequently destroyed. Mrs. Baker as a witness simply identified the letters, and was not asked to testify as to their contents. Objection was also made to a question asked the former wife as to whether deceased was conscious when she was with him at Clutier. This question was not objectionable as calling for a conclusion, for it related to a fact within the witness' observation.

There was no inconsistency in the action of the court in dismissing the proceedings against these defendants without canceling the letters of administration in Tama county. Defendants had not asked that such letters be canceled, and it was immaterial to them whether the administrator appointed in Tama county should continue to attempt administration on the estate of deceased. The relief which defendants sought was to be discharged from the supplementary proceeding in which it was sought to have them account for property of deceased alleged to be in their possession. This relief might properly be granted without canceling the letters of administration.

We find no error in the record, and the judgment is affirmed.

MCGREW v. HOLMES, Mayor, et al. (Supreme Court of Iowa. Jan. 18, 1910.) 1. FALSE IMPRISONMENT (§ 7*)—CIVIL LIABILITY-ILLEGALITY OF ARREST.

Code Supp. 1907, § 254a24, provides that no child under 17 shall be committed to a jail or police station, and that, where such child is charged with a misdemeanor, the case shall be transferred to the district court. Code, § 691, gives mayors the jurisdiction of a justice of the peace in criminal matters, and section 5098 provides that a mayor shall have power to hear complaints or preliminary informations, to issue warrants, order arrests, etc. Plaintiff, a child 12 years old, charged with petit larceny, was brought before a mayor, and committed by him to jail. Held, that a mayor was not liable in a civil action for imprisonment of plaintiff, where he had jurisdiction of the case; his order committing plaintiff being a judicial act in excess of his jurisdiction.

[Ed. Note.-For other cases, see False Imprisonment, Cent. Dig. §§ 17, 18; Dec. Dig. § 7.*] 2. FALSE IMPRISONMENT (§ 31*)-CIVIL LIAACTIONS SUFFICIENCY OF EVI

BILITY
DENCE.

In an action against a mayor for false imprisonment, evidence held not to show malice in committing plaintiff to jail instead of imposing a fine.

[Ed. Note. For other cases, see False Imprisonment, Cent. Dig. § 108; Dec. Dig. § 31.*]

Suit to recover damages for false imprisonment. There was a directed verdict for the defendants. The plaintiff appeals. Affirmed. C. R. Metcalf, for appellant. Crary & Crary and J. A. Prichard, for appellees.

SHERWIN, J. This is a suit against the mayor and the marshal of the town of Ute and their bondsmen, to recover damages for false imprisonment. The plaintiff, who at the time was only 12 years old, was charged with petty larceny, and thereupon the defendant Holmes, who was mayor of Ute, issued a warrant for his arrest, and placed it in the hands of the defendant marshal, a constable of the town, for service. The plaintiff was arrested and taken before the mayor, who fined him and committed him to jail where he remained two or three days. The petition alleges that the arrest, trial, and judgment were without jurisdiction and void, and that the fine and imprisonment were maliciously inflicted. Section 254-a24, Code Supp. 1907, provides that no court or magistrate shall commit a child, not yet having reached his seventeenth birthday, to a jail or police station. It is further provided therein that any such child, taken before any justice of the peace or police court, charged with a misdemeanor, shall, together with the case, be at once transferred by said justice of the peace or police court to said district court and proper order shall be made therefor. The plaintiff was charged with a misdemeanor; and, he being at the time under 17 years of age, the mayor, acting as a justice of the peace, had no authority to fine him or to commit him to jail. Section 691 of the Code gives mayors the jurisdiction of a justice of the peace in criminal matters, and section 5098 of the Code expressly provides that a mayor shall have power to hear complaints or preliminary informations, issue warrants, order arrests, etc. There is nothing in section 254a24, or in the entire chapter relating to juvenile courts, so far as we have been able to examine and understand it, which deprives a justice of the peace or a mayor of the original jurisdiction conferred by the sections of the Code to which we have referred. On the contrary, it seems to recognize that such magistrates have jurisdiction to cause juvenile offenders to be brought before them, and to deal with them in the manner therein provided. If it be true, then, that the mayor had jurisdiction of the subjectmatter and of the defendant who was charged

with a misdemeanor, his judgment imposing | duty under the law, and placed no obstacle a fine and imprisonment was merely in ex- in the way of the mother. Similar acts have cess of his jurisdiction, and such acts would | been repeated thousands of times by the innot render him liable in a civil action for ferior courts of this and every other state, damages. In some jurisdictions liability of and they furnish no ground for a charge of judges and magistrates for their judicial acts malice. is denied, whether acting within their jurisdiction or not. But we need not now go to that length, because here we think the mayor had original jurisdiction of the subject-matter, and that he acted only in excess of such jurisdiction. That no liability exists in such cases is well settled by our own decisions and by the weight of authority in other jurisdictions. In this state there is no distinction between the liability of a judge of a court of general jurisdiction and the liability of a justice of the peace for their judicial acts. Thompson v. Jackson et al., 93 Iowa, 376, 61 N. W. 1004, 27 L. R. A. 92; Londegan v. Hammer, 30 Iowa, 508; Jones v. Brown, 54 Iowa, 74, 6 N. W. 140, 37 Am. Rep. 185; Henke v. McCord, 55 Iowa, 378, 7 N. W. 623; Wasson v. Mitchell, 18 Iowa, 153. And the cases cited and many others hold that a judicial of-ed the process. Heath v. Halfhill, 106 Iowa, ficer is not liable in a civil action for his errors or mistakes.

While the petition charges a conspiracy between the mayor and marshal, there is no evidence sustaining the charge, and in our opinion that is the only charge that is made against the marshal. He did nothing that could possibly render him liable, unless serving the commitment did so. This was regular on its face, and legal process issued by a court of limited jurisdiction. The marshal had no notice that it was not a valid command, and under such circumstances it is generally held that no liability arises by reason of the service. 19 Cyc. 345, and cases cited in notes 15 and 16; Chambers v. Oehler, 107 Iowa, 155, 77 N. W. 853. It certainly must be true that, where no liability exists on the part of the judicial officer, there can be none on the part of the marshal who serv

131, 76 N. W. 522. Where a magistrate has jurisdiction of the subject-matter, but exceeds The case at bar is directly within the rule it, an officer serving process, regular on its stated in Londegan v. Hammer, supra. In face, is not liable. Clarke v. May, 2 Gray that case the plaintiff was tried before a jus- (Mass.) 410, 61 Am. Dec. 470; Henline v. tice of the peace on a charge of willful tres- Reese, 54 Ohio St. 599, 44 N. E. 269, 56 Am. pass, and the court rendered a judgment not St. Rep. 736; Watson v. Watson, 9 Conn. 140, authorized by law. It was said that the jus- 23 Am. Dec. 324; Sandford v. Nichols, 13 tice had jurisdiction of the subject-matter Mass. 286, 7 Am. Dec. 151; Churchill v. and of the person, but exceeded his jurisdic- Churchill, 12 Vt. 661; State ex rel. Carroll v. tion by rendering a judgment that he had no Devitt, 107 Mo. 573, 17 S. W. 900, 28 Am. St. power to render. The justice was held not Rep. 440; Billings v. Russell, 23 Pa. 189, 62 liable. Green v. Talbot was an action to re- Am. Dec. 330; Henke v. McCord, supra ; cover damages for false imprisonment. The Thompson v. Jackson, supra; Heath v. Halfdefendant was mayor of a town, and fined hill, supra. the plaintiff, and, in default of payment of the fine, committed him to jail. The ordinance under which he acted did not authorize the commitment, but it was held that he was not liable under the holding in Londegan v. Hammer.

It seems to be the better opinion, also, that liability does not exist even where the judicial act is malicious or corrupt. But our own cases are not in entire harmony on that subject, and we do not find it necessary to determine the question here.

The judgment below is right, and it is therefore affirmed. Affirmed.

CASAD v. RIPLEY et al. (Supreme Court of Iowa. Jan. 19, 1910.) 1. WILLS (§ 55*) - CAPACITY OF TESTATOR EVIDENCE.

sound mind, capable of making a valid will. Evidence held to show that testator was of [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 137-161; Dec. Dig. § 55.*]

2. WILLS (§ 166*)-UNDUE INFLUENCE-EVI

DENCE.

Evidence held not to show that a will was

procured by undue influence of testator's daughter and her husband, with whom he lived.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*] 3. WILLS (8 52*) — CAPACITY OF TESTATOR

The evidence which it is claimed showed malice on the part of the mayor related to the payment of the fine that had been imposed. The boy's mother said that she did not want him to go to jail, and hence would pay the fine. The mayor thereupon told her that she might do so, and that he would then discharge the boy, but that, if the fine was not paid, the boy must go to jail. The mother never paid the fine, although she had sufficient money therefor, and might have paid it. The evidence is wholly insufficient to show malice on the part of the defendant. The mayor did no more than his supposed

EVIDENCE.

-

Where there is no claim of permanent mental derangement of testator, it must be shown that at the very time the will was executed he had not sufficient mental capacity to make it.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 101-109; Dec. Dig. § 52.*]

product of a keen and competent brain, and that it was made with a full realization of what would be for the best interest of the plaintiff. It is a familiar rule that, where there is no claim of permanent mental derangement, it must be shown that at the very time the will was executed the testator had not sufficient mental capacity to make it. Blake v. Rourke, 74 Iowa, 519, 38 N. W. 392. It is also well settled that opportunity and disposition to influence the testator in disposing of his property is not sufficient to establish undue influence. Fothergill v. Fothergill, 129 Iowa, 93, 105 N. W. 377.

The plaintiff offered to prove certain statements claimed to have been made by the defendant prior to the execution of the will. They were incompetent under the rule often announced by this court. Hertrich v. Hertrich, 114 Iowa, 644, 87 N. W. 689, 89 Am. St. Rep. 389; Fothergill v. Fothergill, supra. But, if the rule were otherwise, there would be no error in the ruling because there is no evidence in the record tending even to show that the plaintiff was prejudiced thereby.

retired from active participation in the banking business, but continued his connection therewith until his death, and spent a part of his time there. He left an estate worth over $90,000, and during his life he had given each of his two children over $13,- | 000. For some seven or eight years immediately preceding his death his health had been poor, and for several months before his death he was afflicted with cancer of the stomach, which finally caused his death. Up until within a month or six weeks of his death he was able to be about town, and was frequently at his son's store, where he had assisted more or less until about a year before he died. There is absolutely no evidence of unsoundness of mind when the will was made, except the inference to be drawn from the testimony of one or two physicians that in their judgment a man who was afflicted with cancer of the stomach would necessarily be so exhausted as to be unable to concentrate his mind on one subject long enough to make such a will as was made by the deceased. It is true the evidence shows that Mr. Casad was at times given opiates to relieve his pain, but there is no pretense that he was not at all other times in full possession of all of his mental faculties, or that he was under the influence of the drug when he directed the will in question. Indeed, the will itself shows much more than usual de- | CASAD v. DISTRICT COURT OF CEDAR liberation and much careful consideration and thought for his wife and children. The plaintiff herein had been unsuccessful in business notwithstanding his father's advice and financial assistance. As late at least as May 24, 1907, he acknowledged having received from his father at various times within the preceding years sums aggregating, with interest thereon at per cent., $13,800. The will provided him a safe and sure income during the rest of his life after his mother's death, and kept the income bearing property where it could not be lost through misfortune or otherwise. Instead of showing mental incapacity, the record conclusively, and the will in particular, shows a clear and farsighted business sagacity, corresponding with the ability which had enabled the testator to accumulate a snug little fortune for his family.

The judgment is right, and it is affirmed.
Affirmed.

COUNTY et al.

(Supreme Court of Iowa. Jan. 19, 1910.) CERTIORABI (§ 8*) — REVIEW - RELIEF—INEF

FECTUAL.

Where the merits of a will contest have been determined on appeal in another action between the same parties, a writ of certiorari to correct an immaterial entry in the will contest will be dismissed.

[Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 14; Dec. Dig. § 8.*]

"Not to be officially reported." Certiorari to determine the correctness of an entry made by the defendant in the case of Casad v. Ripley et al. (No. 26,734 in this court) 124 N. W. 196. Dismissed.

Jamison, Smyth & Leech, for plaintiff. John T. Moffit, J. H. Preston, and C. E. Wheeler, for defendants.

SHERWIN, J. The writ herein was sued out to secure a review or correction of an entry made by the defendant in the trial of the will contest between J. R. Casad, contestant, and Edith C. Ripley et al., proponents of the will of J. W. Casad. Final disposition is made of the contest in an opinion filed at this period in the case of J. R. Casad v. Edith C. Ripley et al., 124 N. W. 196, and, as such disposition renders the entry complained of wholly immaterial, we need not determine the question raised by this writ. The writ is therefore dismissed.

JENKINS v. HAWKEYE COMMERCIAL

MEN'S ASS'N. †

(Supreme Court of Iowa. Jan. 11, 1910.) 1. PLEADING (§ 234*)-AMENDMENT WITHOUT LEAVE-TIME.

A petition may be amended without leave before answer.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 594, 599; Dec. Dig. § 234.*] 2. INSURANCE (§ 811*)-ACTIONS-VENUE.

An action against a beneficial association for benefits under a death policy was properly brought in the county where insured died, and not in the county where the company's main office was; Code, § 3499, permitting insurance companies to be sued in any county in which their principal place of business is, or in which the loss occurred, or, in case of insurance against death, in the county in which insured's domicile was at the time the loss occurred.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1992; Dec. Dig. § 811.*]

3. INSURANCE (8 787*)-CAUSE OF ACTION"EXTERNAL, VIOLENT AND ACCIDENTAL

MEANS"-"ACCIDENT."

A benefit certificate, limiting the right of recovery to cases of death by "external, violent and accidental" means, is intended to avoid liability upon a fraudulent claim of indemnity for bodily injuries, based solely upon insured's testimony, and injuries caused by means coming from outside the body are "external," so that death caused by a fish bone lodging in the rectum was by "external, violent and accidental" means, within the policy, though death resulted directly from blood poisoning, which would not have resulted except for the bone; the lodging of the bone in the rectum being an "accident."' [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1955; Dec. Dig. § 787.*

For other definitions, see Words and Phrases, vol. 3, pp. 2619-2620; vol. 1, pp. 62-70; vol. 8, p. 7560.]

4. EVIDENCE (§ 59*) - PRESUMPTIONS SELFPRESERVATION-AVOIDANCE OF DANGER.

One is presumed to have heeded the instinct of self-preservation, so that it will not be presumed that one voluntarily swallowed a fish

bone.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 79; Dec. Dig. § 59.*]

5. APPEAL AND ERROR (88 1040, 1042*) HARMLESS ERROR-PREJUDICIAL EFFECT-RULINGS ON PLEADINGS.

Where, under the pleadings and proof. plaintiff was entitled to recover, any error in rulings on a motion to strike part of the answer and on the demurrer thereto, was not prejudicial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4094, 4111; Dec. Dig. §§ 1040, 1042.*]

6. INSURANCE (§ 789*)—CONSTRUCTION OF CONTRACT- - PROOF OF DEATH- "AFFIRMATIVE PROOF."

Action in equity to require defendant to levy an assessment on its members and pay the proceeds thereof to plaintiff as beneficiary named in a certificate of insurance. Decree was entered as prayed. The defendant appeals. Affirmed.

Bradford & Johnson, for appellant. Hurd, Lenehan & Kiesel, for appellee.

LADD, J. On August 20, 1906, George Jenkins became a member of the Hawkeye Commercial Men's Association. This entitled him, in event of being injured "through external, violent and accidental means," to certain specified benefits. If the bodily injuries so received "resulted in death within twentysix weeks from said accident, the beneficiary named in his application for membership or his heirs if no beneficiary is named therein, shall be paid the proceeds of one assessment of two dollars upon each member in good standing but in no case shall such payment exceed the sum of five thousand dollars." He died August 26, 1907, and, the defendant having refused to levy an assessment or make any provision for the payment of the indemnity, this action to enforce compliance with the articles and by-laws of the association was begun in the district court of Dubuque county, April 22, 1908. As no answer had been filed, the plaintiff had the right to amend his petition without leave and, having done so, the court rightly considered the petition as amended in passing on the motion for change of venue. Kay v. Pruden, 101 Iowa, 60, 69 N. W. 1137. And as the loss occurred in Dubuque county, the action was maintainable there, and the application to transfer the cause to Marshall county, the location of defendant's main office, was rightly overruled. See section 3499, Code; Prader v. Accident Association, 95 Iowa, 149, 63 N. W. 601; Matt v. Iowa Mut. Aid Ass'n, 81 Iowa, 135, 46 N. W. 857, 25 Am. St. Rep. 483. See Grimes v. N. W. Legion of Honor, 97 Iowa, 315, 64 N. W. 806, 66 N. W. 183.

2. The assured was 61 years of age, and in good health. He first complained of a severe pain in the rectum at about 7 o'clock in the morning of April 22, 1906, when at his son's residence in Chicago, Ill., saying that something must have lodged there. He cleansed his hand, and, putting vaseline on his finger, The provisions of a benefit certificate, re-inserted it in the rectum, and withdrew therequiring "affirmative proof"' of death as the proximate result of external, violent, and accidental means, meant such evidence of the truth of the matters asserted as tended to establish them, regardless of its character, so as to show prima facie that death occurred, and that it resulted from the cause stated.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1963; Dec. Dig. § 789.*

For other definitions, see Words and Phrases, vol. 1, p. 248.]

from the rib of a fish 11⁄2 inches in length, and as large as a darning needle, tapering toward the end. Upon extracting his finger, it and the bone were bloody. He was a traveling passenger agent, and left on business about an hour later, though still complaining of pain which his appearance indicated. He reached Dubuque the following day, and, on examination, Dr. Greene discovered a laceration of

Appeal from District Court, Dubuque Coun- about three-eighths of an inch in length inside ty; Robert Bonson, Judge.

of the rectum, and through the mucous mem

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes