Mulloy v. Ingalls.

within the legal acceptation of the termn; that it was not a partial, but an entire loss of the understanding; for the common law seems not to have drawn any discriminating line by which to determine how great must be the imbecility of mind to render a contract void, or how much intellect must remain to uphold it." Blanchard

v. Nestle, 3 Denio, 41.

We think that under the above rules of law, the evidence taken in the case at bar falls far short of showing a total want of understanding in the defendant at the time she executed the mortgage. B. Reed, the notary public, who is the subscribing witness, and who took the acknowledgment of the parties to the instrument, testifies that he conversed with her at the time; asked her about her health; that he put to her the usual formal questions in taking her acknowledgment, and that she answered in a natural manner, and just as she would when well. This evidence is not at all impaired by that of the daughter of the defendant, who thought her mother was at the time "childish," which means simplicity, or weakness of mind. The term "childish" certainly expresses a degree of reason or intelligence, and while this witness may have believed it was of a very low degree, others might have greatly differed from her opinion and placed it much higher; hence we see the necessity and the correctness of the rule, that there is no grade of understanding between the highest and lowest which incapacitates a person from making a contract, when no fraud is proven. In this case, neither fraud, delusion, nor undue influence was set up as ground of defense, or attempted to be proved. Indeed, there is not the slightest proof tending to show that any artifice, improper influence or fraud was practiced on this defendant to induce her at the time to execute the instrument.

Again it is said, and urged as ground of defense, that the

Mulloy v. Ingalls.

mortgage was not signed by the parties in the presence of the subscribing witness, and that therefore he is not a good attesting witness. This witness testifies substantially that he was called to the house of the parties to subscribe the mortgage as witness thereto, and to take their acknowledgment, and that when he went into the room the defendant had a pen and the mortgage in her hand; that he could not say positively he was present when she signed it, but thinks she was signing it when he went in, and that she handed to him the pen, and he was requested to witness her signature and he did so. Under these facts we have no doubt that he was a competent witness to prove the execution of the instrument by the parties. And it is not material whether it was. signed by the parties in his presence or not, if he was immediately afterwards called on by them to subscribe his name as a witness to it. He was the person agreed upon by the parties to be the only witness to prove it. And the rule seems to be now well settled that it is not essential that such witness should be present at the time the parties subscribe their names to the instrument, for, if afterwards he is told by the parties that the instrument is their deed or agreement, and is by them requested to subscribe the same as a witness to it, that, in law will be sufficient, and in such case, the execution of the instrument and the subscribing by the witness will be considered as parts of the same transaction. The decree of the court below should be affirmed.

DECREE AFFIRMED.

MAXWELL, J., concurred. LAKE, Ch. J., did not sit.

Painter v. Ives.

EDWARD PAINTER, PLAINTIFF IN ERROR, V. EZRA IVES,

DEFENDANT IN ERROR.

1. Jurisdiction of United States Courts in Nebraska. The federal courts have no jurisdiction of the crime of larceny, alleged to have been committed on an Indian reservation in the state of Nebraska.

2.

All the territory embraced within the boundaries of the state, was withdrawn from the jurisdiction of the federal courts, by the act admitting the state into the Union.

3. False Imprisonment: MALICIOUS PROSECUTION: PLEADING: SUFFICIENCY OF PETITION. Although an action for malicious prosecution cannot be maintained, if the proceedings complained of were had by a court having no jurisdiction, yet a petition alleging that in consequence of such proceedings plaintiff was arrested, imprisoned, etc., is sufficient as a complaint for false imprisonment.

5.

6.

: EVIDENCE. In such an action, the information made by the defendant, upon which the warrant issued for the arrest of the plaintiff, is admissible in evidence.

-:: INSTRUCTIONS TO JURY. There being evidence before the jury showing that plaintiff was arrested by a sheriff, at the request of the officer holding the warrant who had telegraphed him for that purpose, and imprisoned in jail until the arrival of such officer, the defendant asked the court to charge the jury, that "in estimating damages, in case the jury found for the plaintiff, they should not consider the fact of such imprisonment." Held, properly refused.

-: DEFENSE. One who procures the arrest and imprisonment of another, upon void process, is liable in an action for false imprisonment, and mere good faith in making the affidavit, by virtue of which the arrest is made, is no defense.

THIS action was commenced in the district court of Washington county, on the seventeenth day of July, 1873, by Ezra Ives against Edward Painter. The petition alleged that on the tenth day of July, A. D., 1873, the said defendant, Painter, willfully and maliciously, and without probable cause, filed a complaint under affirmation with one William L. Peabody, a United

Painter v. Ives.

States commissioner for the district of Nebraska, which complaint was as follows:

UNITED STATES OF AMERICA, )

DISTRICT OF NEBRASKA.

SS.

The information and complaint of Edward Painter, U. S. Indian agent of Omaha tribe in said district, taken on his solemn affirmation before William L. Peabody, United States commissioner for the district of Nebraska, the 10th day of July, 1873, who upon his said affirmation says that he has just and reasonable grounds to suspect and believe that Ezra Ives, on or about the first day of January, 1872, at the Omaha reservation within the district of Nebraska aforesaid, and within the jurisdiction of the United States district court, for said district of Nebraska, did take, steal, and carry away one dark brown or black Indian pony, the property of "Nehatta" belonging to said Omaha tribe, and further saith

not.

E. PAINTER, Indian Agent.

Subscribed in my presence, and sworn to before me, at Omaha in said district, this 10th day of July, 1873. WM. L. PEABODY,

U. S. Com., for the Dist. of Nebraska.

That by reason of the filing of said complaint and by the procurement of said defendant, the said William L. Peabody, a judicial officer of the United States of America issued a warrant for the arrest of the plaintiff, and placed the same in the hands of the United States marshal, who in obedience to said warrant, on the 14th day of July, 1873, arrested the plaintiff and incarcerated him in the county jail of Washington county, Nebraska, and on the 15th day of July, 1873, conveyed the plaintiff to the city of Omaha, where on the 16th day of

.

Painter v. Ives.

July, 1873, an examination into the truth of the charges contained in said information was had before the said United States commissioner, who thereupon discharged the plaintiff from custody, after he had been imprisoned for the space of forty-eight hours; that plaintiff had always borne a good reputation for honesty, and before the time first above stated, was never suspected of the crime of larceny; and that the defendant well knowing these facts, and contriving to injure the plaintiff, did without probable cause procure the arrest and incarceration of the plaintiff, to the damage of the plaintiff in the sum of ten thousand dollars.

The defendant answered that he did not maliciously and without probable cause, etc., make said complaint; that he did not falsely and maliciously cause the arrest of plaintiff; that there was probable and reasonable cause for making the complaint, etc.; that defendant asked the advice of counsel, etc.; and that he acted in good faith,

etc.

Upon the trial of the cause, after the plaintiff had rested his case, the defendant moved for a non-suit on the ground that the evidence upon which the action was based, to-wit: the complaint made by the defendant, showed upon its face that the United States Commissioner had no jurisdiction of the crime charged, which motion the court overruled. The jury returned a verdiet in favor of plaintiff for the sum of five hundred dollars, upon which judgment was entered. The defendant, Edward Painter, brought the cause here by petition in error. The evidence and instructions to the jury, passed upon here, are contained in the opinion.

James Neville, for plaintiff in error.

I. The defendant in error should have made the alle gations in his petition conform to the facts necessary to