prosecution of the offender. The plaintiff ex- | porarily in restraint of his liberty a person pressed his willingness to appear as a wit- as a witness to testify against an accused ness when wanted and notified; but, notwith-person such authority or power does not exstanding this readiness and willingness on ist in this case. The nature and character his part to attend the trial and testify against the accused when needed, he was told by the conductor that he would be held as a witness, and to secure his attendance he would be "locked up," and when the train arrived at Princess Anne the plaintiff was pointed out by the conductor to the officers who were there to meet the train upon its arrival, pursuant to the order wired by the conductor to the agent at that station, and the officers were told by the conductor to hold him as a witness to testify against the disorderly passenger. The officers took him and carried him to jail, at which place he was asked by them, or one of them, if he could give bail for his appearance as a witness when his presence should be needed at the trial of the disorderly passenger. Upon being told that he could not, as he was a stranger in the town and knew no one, he was then released upon his depositing with one of the officers $50 to secure his appearance as a witness at such trial.

This court, in the case of Hall v. Somerset County, 82 Md. 620, 34 Atl. 771, 32 L. R. A. 449, 51 Am. St. Rep. 484, quoted approving ly from Lord Hale, 2 H. P. C. 282, in which that author, in enumerating the compulsory methods by which witnesses can be brought in to testify, states that "the more ordinary and more effectual means (employed for such purposes), the justices or coroner that take the examination of the person accused, and the information of the witnesses, may at that time, or at any time after, and before the trial, bind over the witnesses to appear at the sessions, and in case of their refusal either to come or to be bound over, may commit them for their contempt on such refusal." This court in that case (Hall v. Somerset County) further stated that section 13 of article 35 of the Code, which provides for the payment of fees for witnesses committed to prison upon their failure to find security for their appearance to testify against the accused, "clearly recognizes the power of a magistrate to commit a witness, in order that his attendance to testify against a person accused of crime may be secured, after the witness fails to give such reasonable security for his appearance as may be demanded of him." This statute, however, which provides for the payment of fees of imprisoned witnesses, refers only to such as are committed by magistrates. Therefore the recognition therein found of the right to imprison witnesses upon their failure to find security for their appearance to testify against a person accused of crime can extend no further than the right of the magistrate to commit in such cases.

But, whatever may be the power and authority, if any, of an officer under extreme

of the offense and the conditions and circumstances thereof and the relations existing between the parties do not warrant the arrest and imprisonment of the plaintiff, procured, as it was, by the servant of the defendant, in order to secure his attendance as a witness at the trial of the accused party. "The illegality of the arrest and the unlawfulness of the detention are indispensable elements in this form of action." Kirk & Son v. Garrett, supra. In our opinion, these indispensable elements are found to exist in this case. But, by the defendant's rejected third prayer, the court below was asked to instruct the jury that there was no legally sufficient evidence that the conductor, servant of the defendant company, was ever authorized by the defendant to commit the acts complained of, or that such acts were ever adopted or ratified by the defendant company.

[4] We will now consider the ruling of the court in refusing to grant this instruction. The plaintiff having purchased a ticket from the defendant company entitling him to transportation from Norfolk, Va., over the lines of the defendant and its connecting lines, to the city of Philadelphia, he became a passenger upon the car of the defendant, and was such a passenger at the time of the acts complained of in this case. As a passenger, he was entitled to all the rights, privileges, and protection which the law accords to passengers, and subject to the duties and liabilities which the law imposes on a carrier for the safety and proper treatment of its passengers.

In the case of Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 590, 43 Am. Rep. 185, the court there said: "The trial court dismissed the plaintiff's complaint, on the ground that the defendant's servant, in assaulting the plaintiff [a passenger in the car], was not acting within the scope of his employment, but attacked the plaintiff to gratify some wicked and malicious purpose of his own. Had the person assaulted been one to whom the defendant owed no duty, the dismissal of the plaintiff's complaint would probably have been correct; but the rule which applies in such a case has no application as between a common carrier and his passenger. In such a case, a different rule applies." And this court, in the case of Maryland & P. R. Co. v. Tucker, 115 Md. 43, 80 Atl. 688, filed February 3, 1911, said, in the case of Stewart v. Brooklyn & Crosstown R. R. Co., supra, "it was held that a carrier undertakes to protect his passengers, while being conveyed, against the misconduct of its own servants while engaged in executing the contract."

In the case of Haver v. Central R. R. Co.,

72 Am. St. Rep. 647, which was an action | the agent at Princess Anne to have officers brought against the carrier for the assault meet the train at that point, when, as the made by a brakeman upon a passenger, the defendant contends, the evidence was that court there said: "The case now before the he wired the agent to have officer meet the court depends, not upon the law of liability train, etc. The conductor testified that the of a master for the acts of its servant, but word "officer," and not the word "officers," upon the duty imposed on the railroad com- was used by him in the telegram; the agent pany in the carriage of the plaintiff as a pas- to whom the telegram was sent was unable senger. The duty of a carrier of passengers to give the exact language. But whether is to safely and securely carry persons who the word "officer" or "officers" was used, the bear to it the relation of passengers. The sending of the dispatch resulted in two ofcarrier is under obligations to carry the pas- ficers meeting the train. This, we think, is senger therein to the end of his route, to an unimportant variance, should any exist protect him against assault and other ill at all, and does not render the prayer bad. treatment by those employed by and under We think the court committed no error in the carrier's control while on the way." granting the prayer.

In the case of New Jersey Steamboat Com- [6] In the second prayer of the plaintiff, pany v. Brockett, 121 U. S. 637, 7 Sup. Ct. the jury is instructed that "it is the duty of 1039, 30 L. Ed. 1049, Justice Harlan, speak- the defendant to use all reasonable care to ing for the court, said: "The plaintiff was protect the plaintiff from personal injury entitled, in virtue of his contract as pas- and insult." This, the defendant contends, is senger, to protection against the misconduct stating an abstract proposition of law, based or negligence of the carrier's servants. The on a state of facts not shown to exist in misconduct or negligence while transacting this case. It contends that no personal inthe company's business, and when acting jury was done or insult offered the plaintiff within the general scope of their employment, by reason of his being held and detained is of necessity to be imputed to the corpora- under conditions and circumstances which tion which constituted them agents for the we hold herein constitute false arrest and imperformance of the contract with the pas-prisonment. We cannot adopt this contention sengers. Whether the act of the defendant of the defendant that no personal injury has be one of omission or commission, whether been done or personal insult has been offered negligent or fraudulent, if it is done in the the plaintiff by his false arrest and imprisoncourse of his employment, it makes no dif- ment. Not only was it a personal indignity ference that the master did not authorize and insult, but a personal injury as well. or even know of the defendant's act or neg-"A personal injury includes libel, slander, ligence. Or even if he disapproved or forbade it, he is equally liable, if it be done in the course of his servant's employment. This rule is founded upon public policy and convenience."

And this court, in the case of B. & O. R. R. Co. v. Cain, 81 Md. 105, 31 Atl. 805, 28 L. R. A. 688, held that, "if the plaintiff had been guilty of no breach of the peace, his arrest at the instance of the conductor was unlawful, and, having been made in the defendant's depot whilst the plaintiff, a passenger, was still entitled to be protected by the defendant against assaults and injuries by the defendant's own employés, if wrongfully made by or at the request of the defendant's own servants whilst they were in and about the performance of their prescribed duties, the master would be liable."

From these authorities, it will be seen that the defendant company is liable for the acts of its conductor in ordering and procuring the arrest and imprisonment of the plaintiff, which were committed in the course of his employment, even though he was not authorized to do so by the defendant company; and thus the third and fourth prayers of the defendant, as well as the testimony offered in the ninth exception, was properly rejected.

[5] The only objection urged against the plaintiff's first prayer is that it assumes there

criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injuries to the person." Words and Phrases, vol. 6, p. 5341.

[7] The first eight and the tenth and eleventh exceptions found in the record are to the rulings of the court in permitting the plaintiff to show that he was taken to the jail and security demanded of him by the officers holding him as a witness under the direction of the defendant's servant, and the fact that he deposited with said officers, as security for his appearance as a witness, the sum of $50. The plaintiff in this case was taken into the custody of the officers upon the request of and at the direction of Truitt, the conductor of the defendant company, to hold him as a witness to testify against Freeze, who was at the same time arrested upon the request and direction of Truitt, charged with disorderly conduct. The plaintiff's unlawful detention commenced at the time that he was so taken into the custody of the officers. It was then that his liberty was restrained, and, in a legal sense, he was imprisoned from that time. This was at 12 o'clock Saturday night. With directions from the conductor to hold the plaintiff as a witness, what was he to do but to carry him to jail, or take from him security for his appearance as a witness? These, as it

From what we have said, we find no errors in the rulings of the court below, and will therefore affirm its judgment. Judgment affirmed, with costs to the ap- different tracts of land in dispute is within pellee.

EMINENT DOMAIN (§ 243*)-RIGHT OF WAY-tracts, it is not determinative of them. That LOCATION-EFFECT OF Award.

4. EXECUTORS AND ADMINISTRATORS (§ 437*) | support the action, no privity of contract is -ACTIONS AGAINST ADMINISTRATOR-LIMI- required, other "than that which results from TATIONS "CLAIM AGAINST DECEASED." one man's receiving another's money which he has no right conscientiously to retain. In such a case, the law and the equitable principle upon which the action is founded imply the contract and the assumpsit." Knapp v. Hobbs, 50 N. H. 476, 478; Fogg v. Worster, 49 N. H. 503, 506, 507. The action

A third party's claim against an administrator and the heirs of an estate for money paid the administrator under a mutual mistake is not a "claim against the deceased," within the meaning of Pub. St. 1901, c. 191, § 4, specifying the time within which a suit must be begun against an administrator for any cause of action against the deceased.

[Ed. Note.-For other cases, see Executors

and Administrators, Cent. Dig. §8 1729-1764; Dec. Dig. § 437.*

is "maintainable whenever the money of one man has, without consideration, got into the

For other definitions, see Words and Phras- pocket of another." Lord Ellenborough in es, vol. 2, pp. 1211-1213.]

5. ACTION (§ 36*)-PLEADINGS-SUFFICIENCY
-AMENDMENT OF BILL IN EQUITY.
A bill in equity against an administrator
and the heirs of an estate stated that the
plaintiffs purchased certain personal property
from the administrator and paid him therefor,
and that, by reason of a mutual mistake, the
payment was for more articles than were re-
ceived. The defendants demurred upon the
ground that the plaintiffs had an adequate
remedy at law. Held, that the plaintiff should
amend by filing in aid of the bill a count in
assumpsit for money had and received.

[Ed. Note. For other cases, see Action, Cent. Dig. §§ 295-310; Dec. Dig. § 36.*] Transferred from Superior Court, Merrimack County; Wallace, Judge.

Bill by the Redington Hub Company against Henry J. Putnam, administrator, and others. General demurrer filed, and case

transferred to Supreme Court. Plaintiff given leave to amend, and case discharged. George V. Hill, for plaintiff. Jesse M. Barton and Martin & Howe, for Redington

heirs.

PARSONS, C. J. [1] The substance of the complaint set up in the bill, as explained in argument, is that the plaintiffs bought of the administrator certain personal property and paid him therefor; that, by mutual mis

take as to the number of the articles sold and

purchased, by which the total sum to be paid was determined, the plaintiffs paid the administrator a much larger sum than was due according to the terms of the contract; that is, that the administrator received of the plaintiffs a large sum of money without consideration. Upon the facts as claimed

Hudson v. Robinson, 4 M. & S. 475, 478.

[3, 4] If there has been a judgment of the probate court upon the administrator's account, the plaintiffs were not party to that proceeding. The only matter thereby determined was the amount, as between the administrator and the heirs, for which the administrator should then account. The decree would not be conclusive as to matters subsequently arising. Burleigh v. Bennett, 9 N. H. 15, 19, 31 Am. Dec. 213. The claim is not one against the deceased, and the stat utory limitation of suits against administrators, so founded, has no application. P. S. 1901, c. 191, §§ 1, 4. There is no occasion for proceeding under section 27 of that chapter to avoid the bar of the statute.

[5] The objection raised by the demurrer, that the plaintiffs have an adequate remedy at law, can be avoided by filing the proper count in assumpsit in aid of the bill. As in such an action the plaintiffs can obtain relief upon the facts as claimed in argument, it will not be useful to take time to consider the technical accuracy of the bill, or whether, upon some aspects of the case which may The facts should be determined before an atbe proved, equity will not have jurisdiction. tempt is made to pass upon questions of law

which may or may not be material. The plaintiffs have leave to amend.

Case discharged. All concurred.

HARRINGTON et al. v. CITY OF MAN-
CHESTER.

borough. March, 1912.)

by the plaintiffs, the administrator obtained (Supreme Court of New Hampshire.
no title to this money, and could convey none
to the heirs. Whoever now holds this mon-
ey is bound in equity and good conscience to
return it to the owner.

[2] A count for money had and received, in an action of assumpsit, will furnish the plaintiffs adequate relief. Such an action, in spirit and effect, resembles a bill in equity, and in general is maintainable whenever

the defendant has obtained possession of money belonging to the plaintiff which he ought to refund, as for money paid by mistake of fact, or upon a consideration which has failed. Lockwood v. Kelsea, 41 N. H. 185, 187; Wentworth v. Gove, 45 N. H. 160; Kimball v. Gilman, 60 N. H. 54, 56. To

1. DEDICATION
SUFFICIENCY.

Hills

(§ 19*) - REQUISITES AND

Since the conveyance of lots described as abutting on platted streets conveyed the fee to the street centers, and the rights of ing streets of the same platted tract, it was passage in the other half, and in the remainan unequivocal dedication of the streets to public use.

Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.*]

[Ed. Note.-For other cases, see Dedication,

2. DEDICATION

SUFFICIENCY.

(§ 31*) - REQUISITES AND

Where a company platted lands and dedicated the streets to public use, no acceptance of such dedication was necessary to perfect public: Rev. St. 1843, c. 53, § 7, which prothe gift and vest the right of passage in the vides that no highway, not laid out agreeably

to the statute, shall be deemed a public high- | for actual damages, to be assessed by a jury, way, unless used by the public for 20 years, and for costs. relating only to the proof required to establish such acceptance as would impose upon a municipality duties and liabilities in respect to the maintenance of a highway.

[Ed. Note. For other cases, see Dedication, Cent. Dig. §§ 64, 65; Dec. Dig. § 31.*] 3. ADVERSE POSSESSION (§ 8*)-STREETS.

The public cannot lose its right in a street by the adverse possession of an individual for 20 years.

Burnham, Brown, Jones & Warren and Taggart, Tuttle, Burroughs & Wyman, for appellants. John T. Nixon, George A. Wagner, and Oscar F. Moreau, for appellee.

BINGHAM, J. [1] When the Amoskeag Manufacturing Company platted the lands east and west of the Valley Cemetery, divid[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. ing them into a system of lots and proposed Dig. § 8.*1

Transferred from Superior Court, Hillsborough County; Wallace, Chief Judge.

Proceedings by the City of Manchester to take land for a street, in which William F. Harrington and others appealed to the superior court from an insufficient award of damages. Transferred from the superior court on an agreed statement of facts. Judgment for appellee.

November 1, 1872, the Amoskeag Manufacturing Company conveyed to the appellants' grantors a tract of land in Manchester described as follows: "Westerly on Elm street, there measuring 100 feet; northerly on Grove street, there measuring 100 feet; easterly on a 20-foot passageway, there measuring 100 feet; southerly on lot No. 1546, there measuring 100 feet. Said granted premises being known as lot No. 1851 as shown on said company's plan of lands in Manchester, N. H., and contains 10,000 square feet by measure." The appellants' grantors immediately inclosed, as a part of the above-described land, the southerly half of Grove street bounding thereon and on the passageway by a fence built on the easterly line of Elm street, the center line of Grove street, and the easterly line of the passageway produced. From the date of the conveyance, the appellants or their grantors have been in actual, open, adverse, uninterrupted possession of the portion of Grove street so inclosed, using the same for the purposes of their business, and always claiming ownership thereto, although conveyances of the lot were made by the appellants' grantors, by deed or mortgage, in the years 1874, 1875, 1880, 1884, 1886, 1887, 1892, 1897, and 1993, and in each case Grove street was named as its northern boundary. In the warranty deed to the appellants, Grove street was not named. No part of Grove street west of Valley Cemetery was laid out as a highway until February 10, 1910, when the board of mayor and aldermen of Manchester, upon petition, laid it out from Elm street to Willow street; the portion inclosed by fence, as above stated, being included in the lay-out, and one cent damages being awarded to the appellants therefor. If the appellants are entitled to no more than nominal damages, the city is to have judgment for costs; otherwise the appellants are to have judgment

streets, and sold the lots, bounding them upon the streets and referring to the plan for further description, they conveyed to the several purchasers, in addition to the lots, the fee in the soil to the center of the street or streets upon which each lot abutted and rights of passage in the other half of such streets (Manchester v. Hodge, 75 N. H. 166, 71 Atl. 864), and such easements or rights of passage in the remaining streets designated upon the plan as were convenient or beneficial, or would be regarded as such and operated as inducements to the several purchases. Douglass v. Company, 76 N. H. 254, 81 Atl. 1086. In addition to conveying these private rights in the proposed streets, the company by thus platting and selling the lots manifested an unequivocal intention to dedicate the streets to public use; and they are therefore to be regarded as dedicated to such use. Walker v. Manchester, 58 N. H. 438; Wilkins v. Manchester, 74 N. H. 275, 67 Atl. 560; Trustees v. Hoboken, 33 N. J. Law, 13, 21, 22, 97 Am. Dec. 696; Hoboken, etc., Co. v. Hoboken, 36 N. J. Law, 540, 545; Atlantic City v. Groff, 64 N. J. Law, 527, 528, 45 Atl. 916; Hohokus v. Railroad, 65 N. J. Law, 353, 356, 47 Atl. 566; Osterheldt v. Philadelphia, 195 Pa. 355, 45 Atl. 923; 3 Dill. Mun. Corp. (5th Ed.) 1739-1745, note; 13 Cyc. 455, 458, 463b.

[2] Whether an acceptance of the dedicated streets is necessary to perfect the gift and vest the right of passage in the public is a matter upon which different conclusions have been reached, due, no doubt, to a failure to distinguish between what is necessary to vest the right of passage in the public and what is necessary to constitute an acceptance, such as will render the city or municipality responsible for the construction and maintenance of the streets. In New Jersey, the courts have kept this distinction in mind, and they state their conclusion in this way: "Where the question is whether the way dedicated has become a public highway, so as to impose upon the public authorities a duty to amend or repair, an acceptance on their part is essential to that end. * But an acceptance by the public authorities, or public user, is not essential to conclude the owner from his power of retraction, when his intention to abandon his property and dedicate it to public uses is once unequivocally manifested.

*