degree. They were therefore acting judicial- very doubtful if this amounted to anything ly, and it is the general rule that officers so acting are not liable for injuries which may result from such acts performed in the honest exercise of their judgment, however erroneous or mistaken the action may be, provided there be no malice or wrong motive present." See, also, McFadden v. Town of Jewell, 119 Iowa, 324, 93 N. W. 302, 60 L. R. A. 401, 97 Am. St. Rep. 321. As supporting the same proposition, see Ogg v. Lansing, 35 Iowa, 495, 14 Am. Rep. 499; Kincaid v. Hardin Co., 53 Iowa, 431, 5 N. W. 589, 36 Am. Rep. 236; Calwell v. Boone, 51 Iowa, 687, 2 N. W. 614, 33 Am. Rep. 154; Saunders v. Ft. Madison, 111 Iowa, 103, 82 N. W. 428; Lahner v. Williams, 112 Iowa, 428, 84 N. W. 507; Easterly v. Irwin, 99 Iowa, 696, 68 N. W. 919. A great number of cases announcing the same rule are to be found in 28 Cyc. pp. 1305, 1306. Some cases seem to make an exception where the county undertakes to furnish relief, and in doing so negligently fails to use proper and necessary care. Such an exception seems to be made in Meier v. Paulus, 70 Wis. 165, 35 N. W. 301. But the contrary rule was announced in Lexington v. Batson, 118 Ky. 489, 81 S. W. 264; Twyman v. Frankfort, 117 Ky. 518, 78 S. W. 446, 64 L. R. A. 572; Richmond v. Long, 17 Grat. (Va.) 375, 94 Am. Dec. 461.

more than an attempt upon the part of defendant to get plaintiff out of the county, to which the plaintiff consented. But the greatest obstacle to recovery is the fact that there is no testimony tending to show that defendant Keigley knew it was dangerous to life or health to send the plaintiff away. The doctor who had charge of plaintiff for defendant county said in the presence of both plaintiff and Keigley that his, plaintiff's, feet were looking good. After that, plaintiff started to walk to the train, and was picked up by the chief of police, and carried there in a buggy. There is a lack of testimony showing, or tending to show, that defendant Keigley had any knowledge or information of any danger involved in moving the defendant away from the county. The most that can be said is that defendant wanted to rid the county of the expense of caring for plaintiff, and that he was seeking to avoid furnishing aid. Had it been shown, as in the Wisconsin case, that defendant Keigley knew of the plaintiff's condition, and that he was likely to suffer great injury if he were not cared for, there might, if we were to adopt the reasoning of the minority of the courts, be some ground of liability. But the record does not disclose such a situation. However, we are committed to the doctrine of absolute That the Wisconsin court did not intend immunity in the performance of this governto depart from the general rule is manifest mental function to both the county and its from a consideration of a later case reported officials, and, if we are to adhere to this in 92 Wis. 263, 65 N. W. 1030, under the title rule so many times announced, the other of Kuehn v. City of Milwaukee. Again, proposition need not be considered. in the Meier Case, the action was against We cannot close, however, without suga county poor master for his personal neg-gesting that the practice of shifting foreign lect, and it is clearly stated in the opinion paupers from one county to another does that defendant was under no obligation to not meet with our approval, and such a receive an insane patient, and could not have policy as said in Mansfield v. Sac County, 60 been held liable for failure to accept him as Iowa, 14, 14 N. W. 73, is a disgrace to our an inmate of a county house, but that, having received him, he was under the duty of exercising ordinary care for his safety. The question of liability for failure to exercise a governmental function was neither discussed nor decided. Conceding arguendo that the defendant Keigley might be personally liable for failure to exercise due care after undertaking to grant a relief, although the county itself would not be liable, this lia- 1. ELECTIONS (§ 223*)-CHALLENGES FOR LACK bility must be founded upon negligence, and it must be shown that he undertook to furUnder Code, § 1115, providing that a pernish plaintiff with proper treatment in virson offering to vote being challenged as untue of his office, and that he either wrong-qualified, and, after a preliminary examination, fully or negligently failed to perform the duty. There is no showing that defendant did anything more than see the plaintiff when the county physician was treating him, and that he had no other part in securing his removal from the county than ratifying what the chief of police did by reimbursing him the amount paid for the ticket. It is

civilization.

Our conclusion is that the judgment must be, and it is, affirmed.

LANE v. MITCHELL et al. (Supreme Court of Iowa. Nov. 20, 1911.)

OF QUALIFICATION-DUTIES AND POWERS OF
ELECTION JUDGES.

insisting he is qualified, one of the judges of election shall tender to him a prescribed oath as to his qualification, which being taken by him his vote shall be received, the duties and powers of such judges as to tendering the oath judicial; and they may not refuse to tender and receiving his ballot are ministerial, and not the one or receive the other.

[Ed. Note. For other cases, see Elections, Dec. Dig. § 223.*]

Redmond & Stewart, for appellant. Chas. and that the judges cannot refuse to adW. Kepler & Son, for appellees.

ifications and are given some discretion relative thereto, when the final test provided by the statute is offered, or when it is applied, no discretion is left with the judges, and they must receive the ballot. There are weighty reasons why this should be so; and it is the general rule. The constitutional right to vote is of high value to voters generally, and they should not be deprived of it, except after full investigation by a tribunal with authority to make such an investigation. An election board has no power to, and manifestly could not, call witnesses and enter upon a trial of the right; hence the legislative provision for a final test at the polls, and the requirement that the ballot be received when such test is taken.

not be susceptible of exact calculation. Long v. Long, 57 Iowa, 497, 10 N. W. 875.

The plaintiff alleged that the defendants acted willfully and maliciously in refusing to swear him and to accept his ballot, and, if that was found to be true, the jury would have been warranted in awarding the plaintiff a substantial recovery. While the election board should have received the plaintiff's ballot upon his taking the prescribed oath, there can be no recovery against the board for refusing to receive his ballot, unless the plaintiff shows that he was a resident of Mt. Vernon and entitled to vote there at the time in question. As we have already said, the court should not have held as a matter of law that the plaintiff was not a resident, and hence not entitled to vote, but should have submitted that question to the jury. The judgment must therefore be re versed. Reversed.

Judge Cooley, in his work on Constitutional Limitations (6th Ed.) p. 776, says: "Where, however, by the law under which the election is held, the inspectors are to receive the voter's ballot, if he takes the oath that he possesses the constitutional qualifications, the oath is the conclusive evidence on which the inspectors are to act, and they are not at liberty to refuse to administer the FARMERS' SAVINGS BANK v. ALDRICH oath, or to refuse the vote after the oath has been taken. They are only ministerial

et al.
(Supreme Court of Iowa.

Nov. 20, 1911.)

-EXAMINATION OF ACCOUNTS.

Plaintiff sued to set aside for fraud a settlement with defendant cashier for money misbank, and used to operate a bucket shop in conappropriated by him while cashier of plaintiff nection with the other defendants; the issues raised involving an examination of mutual accounts of payments to H., through whom the several defendants. for profits realized in vatransactions were conducted, and credits to the rious transactions. Held, that the action was one of equitable cognizance, so that a motion to transfer the case to the law docket to determine the amount due from defendants to plaintiff was properly overruled.

officers in such case, and have no discretion 1. TRIAL (§ 11*)-CASES FOR EQUITY DOCKET but to obey the law and receive the vote." It is so held in People v. Bell, 119 N. Y. 175, 23 N. E. 533; People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; Spragins v. Houghton, 3 Ill. (2 Scam.) 377; State v. Robb, 17 Ind. 536; Wolcott v. Holcomb, 97 Mich. 361, 56 N. W. 837, 23 L. R. A. 215; 15 Cyc. 367, and cases cited. And such was also the holding in Ashby v. White, 8 State Trials, 89 (Eng.) 2 Ld. Raym., and in Gillespie v. Palmer, 20 Wis. 544; 10 Am. & Eng. En. of Law, 668. The appellees rely upon Vanderpoel V. O'Hanlon, 53 Iowa, 246, 5 N. W. 119, 36 Am. Rep. 216, as controlling this case on the facts, but the facts are not the same in both cases; and hence that case does not necessarily control this one. The statement of the issues in that case indicates that the voter took the oath and tendered a ballot, but the statute we have discussed, which is the same as sections 619 and 620 of the Code of 1873, was not referred to in the opinion, and the decision is not, therefore, inconsistent with our present conclusion as to the duty of the election board.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 28-30; Dec. Dig. § 11.*]

2. RELEASE (§ 29*) — JOINT TORT-FEASORSCONSTRUCTION.

The cashier of plaintiff bank misappropriated its funds for use in bucket shop operations, conducted through H., for the benefit of the other defendants, and thereafter the bank executed an instrument, signed by its president, acknowledging receipt of a certain sum from H. "to apply on" the sum belonging to the bank, and misappropriated by its former cashier, the bank reserving the right to apply the sum as it chose, except that it should not be applied to any part of the indebtedness of the former cashier to the bank, "by reason of the been reimbursed by the sum received from the sum so misappropriated, for which the bank has surety on the bond of the said cashier to the bank,' and that in consideration of the sum received the bank agreed not to make any further demand upon H., because of any such misappropriations or of any transaction between the cashier and H., for the benefit of the cashier personally or for others. Held, that the release was unconditional, and did not expressly reserve a right to look to others for any misappropriation by the cashier or H.

[2] The appellees also say that there should be no reversal, because, if the plaintiff was entitled to recover, his recovery could be of nominal damages only. But it is not true, as a matter of law, that only nominal damages can be recovered in a case of this kind. If a willful and malicious wrong was done the plaintiff under such circumstances as to entitle him to actual damages, it does not necessarily follow that his recovery can be for nominal damages only, even though such actual damage may

[Ed. Note.-For other cases, see Release, Cent. Dig. §§ 64-70; Dec. Dig. § 29.*]

to have been realized in the various transactions, and that the purpose of the entire action was to recover trust funds misappropriated by Aldrich through the connivance of the other defendants, and for their benefit, we think the court properly refused to hold that the case was not one of equitable cognizance.

cating that it was not to constitute a full settlement with Harper & Ward, not only for their benefit, but for the benefit of all persons liable with them for the misappropriation of the money which had come into their hands, are those indicating that the amount received was "to apply on" the claim of the money so misappropriated, instead of being in full satisfaction thereof; but the release is unconditional, and there is no express reservation of any right to look further to other persons liable for the misappropriation. We think the question is therefore squarely raised whether the release of one wrongdoer constitutes a release also of others jointly liable with him for the wrong.

[2] 2. After the officers of the bank had discovered the misappropriation of its funds, by their use in carrying on bucket shop transactions with Harper & Ward, negotiations were instituted by them looking to the return by Harper & Ward of the bank's funds employed in such transactions. Harper & Ward finally suggested the payment of $2,000 by them as a settlement. Later the president [3] Counsel for appellee contend that these and attorney for the bank suggested that appellants and Harper & Ward were not the claim might be settled for $6,000. Then, joint wrongdoers, and therefore the rule as after several further meetings, Harper & to the effect of the release of one joint tortWard offered $4,000 to compromise the claim, feasor, as to the liability of others, has no and this offer was accepted and the money application. But as we understand the rule paid. Before this offer was accepted, the it is not strictly limited to cases of wrongs representatives of the plaintiff had dropped against the person or against tangible propto $5,000. The negotiations had extended erty. It is applicable in every case where over a period of about six months, and the one person may look to two or more, charged final settlement was in the nature of a rewith a wrong jointly, or jointly and severlease of Harper & Ward, so far as any fur- ally, and it is applicable as well in cases of ther obligation to the bank was concerned. breach of contract. Turner v. Hitchcock, 20 In connection with the settlement, but not Iowa, 310, 323. The plaintiff bank was askas a part of it, so far as Harper & Ward ing to recover money misappropriated by its were concerned, it was stated that the in- cashier, and this misappropriation consisted tention of the officers of the bank was to in paying the money to Harper & Ward. proceed against the other parties. The conThe connection of the appellants with the summation of the settlement was by an transaction was in procuring, or assisting, instrument in writing, as follows: "Des or profiting by such payment. None of the Moines, Ia., Oct. 1, 1909. This is to acknowl- money passed through their hands, and they edge receipt of the sum of four thousand received no money from Harper & Ward. It dollars from the firm of Harper & Ward to is true checks for alleged profits were made apply on sums of money belonging to the out, payable to appellants, but they were deundersigned bank and misappropriated by livered to Aldrich, and by his own indorseRalph H. Aldrich, formerly cashier of said ment of the names of appellants turned over bank; said bank reserving the right to ap- to the bank, which received the money. It ply the said four thousand dollars as it shall is a question under the record whether the choose to apply the same, except that it shall use by the cashier of the names of the appelnot be applied to any portion of the indebt- lants in making such indorsements was auedness of said Ralph H. Aldrich to said thorized by the relations which the cashier bank by reason of the sums so misappropri- had reason to understand existed between ated for which the bank has been reim- him and each of the appellants. It is suffibursed by the sum received from the surety cient now to say that it is perfectly clear on the bond of said cashier to said bank. that if the bank had any claim whatever In consideration of said four thousand dol- against Harper & Ward it had a claim for lars said bank agrees that it will not now the entire amount of money paid to that firm nor at any time hereafter make any further out of the bank's funds, deducting the demand upon said Harper & Ward because amounts returned to the bank, whether reguof any such misappropriations, nor by reason larly or irregularly, by means of checks or of any business, trades or transactions be- drafts, for supposed profits or money adtween said Ralph H. Aldrich and said Har- vanced by the firm to the cashier, and used per & Ward either for himself personally or for the benefit of the bank. There is not the in behalf of others. The undersigned offi- slightest doubt, therefore, that in settling cers of said bank hereby represent that they with Harper & Ward the bank was attempthave due and full authority to receive said ing to settle a claim for the same money funds and make this agreement, on behalf of which it is now demanding from the appelthe bank. Farmers' Savings Bank of Hux- lants. Under these circumstances, the appelley, Iowa, by O. J. Kalsem, President. Peter lants and Harper & Ward were, on plaintiffs' B. Brown, Director." theory, jointly and severally liable for the The only words in this instrument indi- misappropriation of the money; that is to