THE PEOPLE V. KEHL.

and imprisoned in the county jail. Kehl sued out a writ of habeas corpus, returnable before the Circuit Court Commissioner, and moved to be discharged, on the ground that he was arrested upon a second execution, and which he claimed could not be done under the statute. No notice was given to Moore, the plaintiff in the execution, of the issuing of the writ; but his attorney appears to have made a preliminary objection, on the ground that Moore was entitled, under the statute, to four days notice of the time and place at which said writ was returnable.

The commissioner overruled the objection, and treated the appearance of Moore's attorney as a waiver of notice. He also held the second execution void, and discharged the prisoner.

Moore & Griffin, for the relator.

E. Crofoot, for the respondent.

Per Curiam.

The plaintiff in the execution was entitled, under the statute-2 Comp. L. § 5237—to four days notice of the time and place at which the writ was returnable before any order of discharge could be made.

The appearance of the plaintiff's attorney for the purpose of objecting to the hearing of the writ, until such notice had been given to the plaintiff can not be treated as a waiver.

In an action of trespass, when an original execution can issue against the body of a defendant, an alias execution may also issue against the body upon the return of the previous one, "not found."

Ordered, that the proceedings of the commissioner be reversed, and the prisoner remanded to the custody of the sheriff.

BROOKE V. THE GRAND TRUNK R. W. Co.

John Brooke v. The Grand Trunk R. W. Co.

Railroad tickets over separate roads: Rights of passenger. Where a passenger bought tickets of a railroad agency in Buffalo, one from Buffalo to Stratford, in Canada, over the B. and L. H. Railway and the other from Stratford to Detroit over the G. T. Railway, and after a delay of two months, from the time of using the former ticket commenced his journey from Stratford to Detroit on the second, it was held that, although printed on the same piece of paper, yet, as they contained no restrictions, they were distinct contracts and vouchers for separate journeys, and the validity of the last ticket was not affected by the delay.

When the evidence conflicts, it is error in the court to decide the point in conflict and take it from the jury.

Error to Wayne Circuit.

Heard April 23d. Decided April 30th.

This was an action of trespass on the case brought by plaintiff to recover damages against the Grand Trunk R. W. Co. for being ejected from the cars by one of their conductors.

The jury, by direction of the court, rendered a verdict for the defendants, and the case was removed by writ of

error.

The facts are stated in the opinion.

Larned and Hebden, for plaintiff in error.

1. The principal question presented on the record in this case is the charge given by the court, that from the plaintiff's evidence he could not recover; that the contract was for a continuous passage from Buffalo to Detroit, and was not severable, and that leaving the train at Brantford was a forfeiture of his contract.

The record is distinct that plaintiff purchased two tickets-one from Buffalo to Stratford, and the other from. Stratford to Detroit. The tickets and the evidence of witnesses also show that these two roads between Buffalo and Detroit were owned and operated by separate and distinct companies-i. e., the Buffalo and Lake Huron to Stratford,

BROOKE . THE GRAND TRUNK R. W. Co.

and the Grand Trunk from there to Detroit. That these tickets were upon the same piece of paper is not material. They were so printed as to be easily severed, and were as much distinct agreements as two promissory notes or contracts written upon the same piece of paper. One ticket is the contract of one company, the other the contract of the defendant's company. Upon the latter the defendant never rode till the day he left Stratford in August. Shall the defendants keep his money and with

hold the consideration?-24 Barb. 514.

Again: Why did the agents of defendants assent to plaintiff's riding from Stratford to Port Huron on the second ticket?

This last act is decisive of the case. The question is, what was the contract or understanding of the parties? Plaintiff, by presenting, and the agent of defendants, by receiving the second ticket as valid from Stratford, admitted the contract to be, that, while he might have to complete a continuous ride upon each ticket, he might sever the tickets.

The plaintiff is entitled to "a reasonable interpretation of the contract"-i. e., the meaning of the tickets as gathered from their face. They plainly read two separate contracts, for different parts of the route.-11 Ohio, 462.

The punching of the ticket between Stratford and Port Huron did not and could not destroy its validity from Port Huron to Detroit. If it was not intended to be good for the balance of the route, why was it left with plaintiff? Is it a reasonable regulation for a company to sell a ticket from Stratford to Detroit, punch it midway, and tell the passenger to pay a second time?—Ibid; Redfield on R. W. 300.

Maynard and Meddaugh, for defendant in error.

1. There is no error in the charge of the judge to the jury.

BROOKE V. THE GRAND TRUNK R. W. Co.

a. One who has purchased a passage of a railway company from one point to another over its road, and commenced the journey, is bound, in the absence of a special contract to the contrary, to continue through on that train. By leaving the cars at an intermediate station, he forfeits his right to be carried under that contract.-Pierce on Am. R. R. Law, 491; 11 Met. 121; 4 Zabris. 435; 11 Ohio, 457; 24 Q. B. 120.

When the passenger enters upon his journey, by virtue of his contract with the company, the company is undoubtedly bound to carry him directly through. It can not, after having conveyed him part of the way, stop its train for its own convenience, and detain him until the next day, nor insist that he shall leave the cars at an intermediate station and remain till a subsequent train. Such course by the company would be a violation of the contract, subjecting it to an action for damages. - Redfield on Rail ways, 342, Note 2. This obligation is reciprocal-on the part of the company to carry directly through by the usual course, and on the part of the passenger to be so carried.

b. By the rules of the company, a ticket was valid only for a continuous journey, and did not entitle the holder to stop at intermediate stations.

A common carrier may prescribe rules and regulations concerning the carriage of persons and property, and if reasonable, they must be observed by those employing the carrier. 11 Met. 121; Pierce on Am. R. R. 491.

The fact proven in this case in reference to the difference in fare charged by the company for a through passage, and a passage from intermediate points to the terminus of the road, is only the well known regulation of all railroad companies. The existence of competition at the termini of a road is generally the reason for this discrimination in favor of through passengers. If carriers have the right to make this distinction in fare, it would seem necessarily

BROOKE v. THE GRAND TRUNK R. W. Co.

to follow that they should have the right to protect themselves in the advantages to be secured by it. 18 Ill. 469; 31 Barb. 556; 11 Met. 121; 20 N. Y. 126; 5 Mich. 520.

Such regulations are at all events binding upon the passenger, unless he can show good reason why he should be excepted from them.― Redfield on Railroads, 32, note 5.

c. The company did not waive its rights by carrying the plaintiff from Brantford to Port Huron. One of its agents neglected his duties in not ejecting the plaintiff sooner, but can the plaintiff predicate any right upon this? 17 N. Y. 306.

d. The character of the contract is not affected by the fact that two tickets were issued instead of one.

The ticket is not a contract, but is simply evidence to the conductor of the train that the passenger has paid his fare. It is not signed by either party, and expresses neither a consideration nor time of performance. It is a device by carriers for their own convenience in conducting the business of carrying passengers. It is of the same nature as a check for baggage, and, like it, simply designed to answer a particular purpose of convenience.17 N. Y. 306; 31 Id. 661; 22 Conn. 14; 24 Ill. 338.

2. The judge did not invade the province of the jury in directing a verdict for the defendant.

That plaintiff purchased a through ticket from Buffalo to Detroit on the 28th day of June, A. D. 1864, and on that day rode as far as Brantford, Canada, where he stopped; and that he did not resume his journey from the latter place until August 24th, some two months thereafterwhen he was carried by defendant to Port Huron, where he again stopped and remained till the next westward bound train the charge assumes to be true, and there is no testimony to the contrary.

If, upon this state of facts, the law will not sustain a verdict in favor of the plaintiff (as we have argued), then this direction of the judge was not error.