bribe taker (who may have received thrice | Mo. 63, 97 Am. Dec. 248. We do not think the sum to vote for the briber's opponent), that the provisions of chapter 78, referred to, it is idle to place any trust in such a use of even if mandatory, conflict in any way with money. Wigmore, Australian Ballot System, the constitution. 52. A ballot ought to be cast by the voter intelligently and thoughtfully. If so cast, there is no trouble in complying with the provisions of chapter 78. If a person is illiterate or physically disabled, he may have assistants to mark his ballot. No one is disfranchised by the act, nor are the provisions concerning the marking of the ballot difficult to understand. The legislature, within the terms of the constitution, may adopt such reasonable regulations and restrictions for the exercise of the elective franchise as may be deemed necessary to prevent intimidation, bribery, and fraud, provided the voting be by ballot, and the person casting the vote may do so in secrecy. Curran v. Clayton, Whittam v. Zahorik, and Parvin v. Wimberg, and Boyd v. Mills, supra; Blair v. Ridgely, 41

Finally, it is insisted that the district court, after reaching the conclusion it did concerning the counting of the ballots, should have sent the case back to the contest court for a new trial, and not rendered final judgment. The case as presented to this court, is upon admitted facts. The ballots in dispute are truly copied in the record. The case is before us in the nature of an agreed statement of facts. This court is able, from the examination of the admitted facts, to direct the judgment. There appears no necessity for reconvening the contest court. The counting of the ballots by the Dis trict Court is approved, and the judgment of that court affirmed. All the Justices concur.

MARYLAND COURT OF APPEALS.

The facts are stated in the opinion.

Messrs. John K. Cowen, W. Irvine Cross, and George Dobbin Penniman, for appellant:

To constitute the injury of false imprisonment there are two points requisite: (1) the detention of the person; and (2) the unlawfulness of such detention.

3 Chitty's Bl. *128. Nothing appearing to the contrary, it must be presumed that the arrest was lawfully made. Kane v. State, 70 Md. 551.

To hold a corporation liable for a tortious act committed by its agent, the act must be

NOTE.-For master's liability on account of a wrongful arrest by his servant, see Mulligan v. New York & R. B. R. Co. (N. Y.) 14 L. R. A. 791, and note: Palmeri v. Manhattan R. Co. (N. Y.) 16 L. R.

A. 136.

For arrest without warrant, see State v. Hunter, (N. C.) & L. R. A. 529, and note; Burroughs v. Eastman (Mich.) 24 L. R. A. 859; Cabell v. Arnold (Tex.)

22 L. R. A. 87.

done by its express precedent authority or be ratified and adopted by it, and the power to do the tortious act cannot be implied in the agent.

Where the master, under the circumstances, would not himself have power to order the arrest, no such authority can be implied in the agent.

Foulton v. London & S. W. R. Co. L. R. 2 Q. B. 534.

In this case the railroad company had no power to order Cain's arrest without a warrant, and the authority in the agent to order such an arrest, and thereby incidentally bind the company for the consequences, cannot be implied.

Carter v. Howe Mach. Co. 51 Md. 290, 34 Am. Rep. 311.

The conductor did not commit any overt the Washington depot, and if Cain was then acts as against Cair until he was arrested in drunk and disorderly his arrest was warranted by his condition and conduct and there was no liability for this arrest on the part of the railroad company.

Taaffe v. Slevin, 11 Mo. App. 514.

Messrs. John G. Rogers and J. S. Newman also for appellant.

Messrs. Alexander Kilgour and Joseph D. McGuire for appellee.

McSherry, J., delivered the opinion of the court:

This is an action of trespass for false imstance, that the plaintiff was a passenger prisonment. The declaration alleges, in subupon one of the cars of the defendant; that he was received as such passenger at Washing ton Grove station, for the purpose of being carried from that place to Washington city, and that it thereupon became the duty of the defendant to carry the plaintiff safely to his destination; yet the defendant did not carry the plaintiff safely to Washington, but in stead thereof, when the car conveying the plaintiff reached the depot of the defendant

in said city, the defendant, by its agents and servants, assaulted and beat the plaintiff and forced him to go from said car and depot into the public street, and gave him into the custody of a police officer, who took him to a police station, and caused the plaintiff to be there imprisoned, without any probable cause, for the space of two hours, whereby he was greatly bruised, hurt, and injured. The defendant pleaded not guilty. During the progress of the trial, which resulted in a verdict and judgment for the plaintiff, four exceptions were reserved, and the defendant then took a pending appeal.

guage in the presence of ladies, they all, including the plaintiff, in loud and boisterous tones, replied by saying, "God damn the ladies." The defendant further proved that, after these men entered the ladies' car, they cursed and swore and drank liquor openly, and that one of them was smoking; that the conductor expostulated with them, and urged them to be quiet or to go into the smoking car, where they could drink and smoke as much as they pleased; that they said they had paid their fares, and would ride where it suited them. The conductor again appealed to them to be orderly, or he would be There is, as might be expected, and as is obliged to put them off the car; whereupon usual in cases of this character, some diamet- the plaintiff replied: "If you put him off rically conflicting testimony respecting a [meaning Watkins, who was smoking], you portion of the material facts; but only so will have to go too.' It was further proved much of this as is necessary to give appre- that numerous complaints were made by hension of the legal principles involved need ladies and gentlemen about the conduct of be alluded to or stated. It is not disputed these four men, and that one lady left the by either side that early on Sunday morning, car, and went into the forward car. AfterAugust 21, 1892, the plaintiff and three com- wards other ladies who got on the train at panions drove to a camp meeting held at other stations were put in the forward car, Washington Grove, in Montgomery county, because it was not fit for them to enter the and that, shortly after reaching the ground, one where the men were. The conductor did they, together with several others, went to not undertake to put them off, because he did the railroad station near by, and the four, not believe himself able to cope with these namely, the plaintiff and three others by the four intoxicated and lawless men. Just bename of Watkins, took passage on the cars of fore the train arrived in Washington, the the defendant for the city of Washington, in plaintiff was still behaving in a disorderly the District of Columbia. They entered the manner, and using profane language, in the ladies' car, and from this point the conflict hearing of the passengers on the same car. ing statements of the witnesses begin. Ac- There were between fifty and sixty passencording to the plaintiff's evidence, these four gers on the train, most of whom were on parties demeaned themselves in the car with their way to church in Washington. Finding perfect propriety until the conductor charged himself unable to control these men or to one of them (Robert Watkins) with smoking. suppress their disorder, and feeling powerWatkins denied the accusation, and some less to eject them because of their threatened words followed, whereupon the conductor resistance, the conductor telegraphed from threatened to put Watkins off the train. The Forest Grove to Washington for an officer to plaintiff then told the conductor that he (the arrest them, and, when the train drew up in conductor) would go off too if he put Wat- the depot in that city, the policeman was kins off for nothing. After further words, there, and the conductor pointed out to him the conductor said he would have the party the plaintiff; and the officer then and there arrested when they got to Washington, and, arrested the plaintiff, and took him to the just as the plaintiff stepped off the train in station house. With these facts before the the depot at Washington, he was arrested by jury, there were two prayers presented by a police officer, to whom the conductor, then the plaintiff, both of which were granted; standing by and pointing to the plaintiff and and there were nine presented by the defend. the elder Watkins, said, "These are the men." ant, all of which, except the sixth, were They were taken to the police station, and rejected. The view we take of the case disafter having given their watches and effects as penses with a separate consideration of each bail, and after having been in custody fifteen of these prayers, inasmuch as the defendant's or twenty minutes, they were released. The fifth prayer raises the crucial inquiry conconductor appeared against them at the sta- tained in the record; and what we shall say tion house. The plaintiff himself testified in discussing that prayer will, with a few that "the police fined them five dollars apiece, brief additional observations, dispose of and he left his watch as security, and after- most, if not all, of the others. The fifth wards produced the money and got the prayer maintains that, if the plaintiff was Watch." Upon the part of the defendant it riotous and disorderly, the conductor had the was proved by a number of witnesses, some right to eject him; that, if the conductor was of whom were passengers on the same train unable to do this by reason of the threat of of cars, that the conduct of the plaintiff and resistance, then the conductor was justified his three companions was most disgraceful, in requesting the first police officer whom he shocking, and disorderly from the time they could find to arrest the plaintiff; and it proreached the camp-meeting ground until they ceeds: "If the jury further find that the arrived in Washington. They were drunk police officer at the Washington depot was the before boarding the train, and, as stated by first police officer the conductor saw, and that one of the witnesses, "It was not decent for the conductor used due diligence in procurthem to be where there were ladies;" and ing a police officer, and that the conductor when they were remonstrated with, and re-directed the police officer to arrest the plainquested to desist from using profane lan- tiff for said disorderly conduct, that the de

fendant is not liable for this arrest, and the | evidence that the plaintiff entered the deverdict of the jury must be for the defend- fendant's shop to purchase an article. when ant." From this prayer, considered in connection with the evidence to which allusion has been made, it is obvious at a glance that the predominant and controlling question before us involves the legality of the conceded arrest made in the city of Washington. Under the undisputed proof, that arrest was made without a warrant having been first procured. It was not made for an alleged felony, nor for a misdemeanor or breach of the peace, committed within view of the officer who took the plaintiff into custody, but, if the evidence of the defendant's witnesses be credited, it was made for a flagrant breach of the peace, which began at Washington Grove, and continued into Washington city, on the morning train of the defendant, and was made at the instance of the conductor, the very moment he reached a place where he could deliver these intoxicated offenders into the custody of a police officer. Was the arrest so made illegal?

a dispute arose between the plaintiff and the defendant's shopman; that plaintiff refused on request to go out of the shop; the shopman endeavored to turn him out, and an affray ensued between them; that the defendant came into the shop during the affray, which continued for a short time after he came in; that the defendant then requested the plaintiff to leave the shop quietly, but, he refusing to do so, the defendant gave him in charge to a policeman, who took him to a station house. Parke, B., in the course of his lucid opinion, said: "It is unquestionable that any bystander may and ought to interfere to part those who make an affray, and to stay those who are going to join in it till the affray be ended. It is also clearly laid down that he may arrest the affrayers, and detain them until the heat be over, and then deliver them to a constable.” Then, after quoting from Hawk. P. C. the same passage we have transcribed from 1 Russell, It is settled that an officer has the right to Crimes, the learned baron went on: "And arrest without a warrant for any crime com- pleas founded upon this rule, and signed by mitted within his view. It was his duty to Mr. Justice Butler, are to be found in 9 Wentdo so at the common law, and this is still the worth on Pleadings, 344, 345. And De Grey, law (Roddy v. Finnegan, 43 Md. 504; Phillips Ch. J., on the trial, held the justification to v. Trull, 11 Johns. 486; Derecourt v. Cor- be good. It is clear, therefore, that any perbishley, 5 El. & Bl. 188); and in cases of son present may arrest the affrayer at the felony he may arrest upon information, with- moment of the affray, and detain him till his out warrant, where he has reasonable cause. passion has cooled and his desire to break Rex v. Birnie, 1 Moody & R. 160; Rohan v. the peace has ceased, and then deliver him Sawin, 5 Cush. 281. And so any person, to a peace officer. And, if that be so, what though not an officer, in whose view a felony reason can there be why he may not arrest is committed, may arrest the offender. Ru- an affrayer after the actual violence is over, loff v. People, 45 N. Y. 213. But the right but while he shows a disposition to renew it, of a person not an officer to make an arrest by persisting in remaining on the spot where is not confined to cases of felony, for he may he has committed it? Both cases fall within take into custody, without a warrant, one the same principle, which is that, for the who in his presence is guilty of an affray or sake of the preservation of the peace, any ina breach of the peace. Knot v. Gay, 1 Root, dividual who sees it broken may restrain the 66. "It seems agreed that any one who sees liberty of him whom he sees breaking it, so others fighting may lawfully part them, and long as his conduct shows that the public also stay them till the heat be over, and then peace is likely to be endangered by his acts. deliver them to the constable, who may carry In truth, while those are assembled together them before a justice of the peace, in order who have committed acts of violence, and to their finding sureties for the peace." 1 the danger of their renewal continues, the Russel, Crimes, 272; 1 Archbold, Crim. Pr. affray itself may be said to continue; and & Pl. 82; 1 Hawk. P. C. chap. 63, § 11, during the affray the constable may not 17; 2 Hale, P. C. 90; East, P. C. 306; Tim- merely on his own view, but on the informaothy v. Simpson, 1 Cromp. M. & R. 757. The tion and complaint of another, arrest the of case last cited was one of trespass for assault fender; and, of course, the person so comand false imprisonment, and taking the plaining is justified in giving the charge to plaintiff to a police station. Plea, that the the constable. Hale, P. C. 86. . It defendant was possessed of a dwelling house, is clear upon the facts that there was a deand the plaintiff entered the same, and then fense on the ground of the defendant's right and there insulted, abused, and ill treated to arrest for a breach of the peace in his presthe defendant and his servants, and greatly ence. See also Grant v. Moser, 5 Mann. & disturbed them in the peaceable enjoyment G. 127; Simmons v. Millingen, 2 C. B. 534; thereof, in breach of the peace; whereupon Webster v. Watts, 11 Q. B. 311; Cohen v. the defendant requested the plaintiff to cease Huskisson, 2 Mees. & W. 477; Shaw v. Chairhis disturbance, and to depart from and outitie, 3 Car. & K. 21; Burns v. Erben, 40 N. of the house, which the plaintiff refused to do; that thereupon the defendant, in order to preserve the peace and restore good order in the house, gave charge of the plaintiff to a policeman, and requested the policeman to take the plaintiff into his custody, to be dealt with according to law, and the policeman gently laid his hands on the plaintiff, and took him into custody. It appeared in

Y. 466; Smith v. Donelly, 66 Ill. 464; Tiedeman Pol. Powers, 84; State v. Sims, 16 8. C. 486, a case strikingly apposite. In Burns v. Erben, supra, it was held that, “as a gen eral principle, no person can be arrested or taken into custody without a warrant. But, if a felony or a breach of the peace has in fact been committed by the person arrested, the arrest may be justified by any person,

without warrant, whether there was time to procure a warrant or not; but, if an innocent person be arrested upon suspicion by a private individual, such individual is not excused unless such offense has, in fact, been committed, and there was reasonable ground to suspect the person arrested. Hale, P. C. 72; 1 Chitty, Crim. L. 15; Holley v. Mix, 3 Wend. 353, 20 Am. Dec. 702.

done by the conductor, if the facts testified to by the defendant's witnesses be credited, was undeniably lawful, under all the circumstances. If this be so, then there is obviously no cause of action against the defendant, because no wrong has been done to the plaintiff. This is the theory of the defendant's fifth prayer. That prayer, being correct in principle and proper in form, ought to have been granted. For the same reasons, the second, third, fourth, and seventh prayers should have been granted.

The eighth was properly rejected. It makes the right to arrest depend on the fact that, while on the train, the plaintiff was charged by the conductor with being disorderly, whereas the right to arrest depended on the fact that the plaintiff was in reality disorderly. His having been charged by the conductor with being disorderly is quite a different thing from his having been in fact disorderly. The ninth prayer was properly rejected. It failed to submit to the jury that the arrest was made for the alleged breach of the peace. Though the arrest had been made without an assigned cause, the prayer exonerated the defendant.

The plaintiff's first prayer ought to have been rejected. Its fallacy lies in the postulate that an arrest for a breach of the peace, committed out of the view of a peace officer, necessarily could not be legally made without a warrant.

The second prayer of the plaintiff related to the measure of damages, and was correct.

The ruling in the first exception is affirmed. Though the evidence objected to had been inadmissible, the same fact was subsequently proved in an unobjectionable way by Officer Howe. Consequently, no injury was done, and without injury there can be no reversible error.

Now, if it be true that the plaintiff was guilty of the reprehensible and disorderly conduct attributed to him by the witnesses, he was incontestably engaged in a flagrant and an outrageous breach of the peace, as pronounced as if there had been an actual affray during the whole time he was in the defendant's car; and it was clearly lawful, under these conditions, for the conductor to expel him and his drunken companions from the train if he had a sufficient force to overcome their threatened resistance, or else to arrest them all without warrant, and then deliver them to the first peace officer he could procure within a reasonable time. If this were not so, then, as said by Lord Chief Justice Denman in Webster v. Watts, supra, "the peace of all the world would be in jeopardy.' And it would be in jeopardy, because if, in such and similar instances, no arrest could be lawfully made without a warrant, the culprit, "if transient and unknown, would escape altogether," before a warrant could be obtained (Mitchell v. Lemon, 34 Md. 181), and there would soon cease to be any order or any security or protection afforded the public on swiftly moving railroad trains, or even elsewhere, unless a peace officer were constantly present. The delay necessarily incident to obtaining a warrant would be in many, if not in most, cases of this and a kindred character equivalent to an absolute immunity from arrest and punishment; and, should the name of the offender At the conclusion of the plaintiff's case, be unknown, he, most probably, would never the defendant offered two prayers, asking be apprehended if once suffered to depart. the court below to withdraw the case from The law is not so impotent and ineffective the jury. They were rejected, and this rulas that. Being physically unable to expel ing is the one complained of in the second these alleged riotous persons from the train, exception. We find no error in this. If the the conductor telegraphed for a peace officer, plaintiff had been guilty of no breach of the and without delay, and while the plaintiff peace, his arrest at the instance of the conwas still drunk, caused his arrest the instant ductor was unlawful; and having been made the officer thus summoned came in view of in the defendant's depot, while the plaintiff, the plaintiff. If, then, any bystander could, a passenger, was still entitled to be protected in the language of Baron Parke, "for the by the defendant against assaults and insake of the preservation of the peace, juries by the defendant's own employés, if restrain the liberty of him whom he sees wrongfully made, by or at the request of the breaking" the peace, the act of the conductor defendant's own servants, while they were in telegraphing for the policeman, and in and about the performance of their prewithin a short space of time thereafter hand-scribed duties, the master would be liable. ing the plaintiff over to the officer, was in There was some evidence before the jury no respect different from a formal arrest of that the arrest had been made without a warthe plaintiff by the conductor, in the midst rant, and therefore the second prayer was of the riot and disorder, and the prompt de- properly rejected. One of these prayers was livery of him afterwards to the officer. If again presented at the close of the case, and the plaintiff was not in fact arrested by the was again rejected, and we think properly conductor because of the presence of superior refused. resisting force, that fact cannot make the subsequent act of the conductor in pointing out the plaintiff to the officer wrongful or illegal. The charge, according to the plaintiff's own testimony, was sustained. A fine was imposed, and he paid it. The accusation was therefore well founded and what was

The remaining exception relates to the refusal of the court below to submit special interrogatories to the jury, under Act 1894, chap. 185. We have had occasion to consider that act during the present term of this court, and need not refer again to its provisions. The interrogatories propounded by the de

fendant were presented before the arguments For the error, then, in rejecting the deto the jury began, and therefore at a season- fendant's second, third, fourth, fifth, and able time; and the third, fourth, and fifth, seventh prayers, and in granting the plainsubmitting material questions of fact which tiff's first instruction, and for the error in the defendant, under the statute, had the refusing to submit the third, fourth, and fifth right to require the jury to pass on and re-special interrogatories to the jury, the judgspond to, should have gone to the jury for ment must be reversed, and a new trial will specific answers. There was error in refusing be awarded. this request. The other questions submitted were immaterial.

CALIFORNIA SUPREME

See also 36 L. R. A. 742; 38 L. R. A. 514.