328
PDBBAL BJIlPOBTlIlB.
do nothing under it, is rea;11yno delivery, and confers no rights on the' creditor." It is true, the case I have cited was not expressly a case like this, where a continuation of a lien by the issue of an execution was involved. That was a case between contending executions, and it was held that the delivery of a writ to a sheriff, with instructions not to execute it, was equivalent to no delivery at all. See, also, Berry v. Smith, 8 Wash. C. U. 60. The case, therefore, seems to me to stand precisely the same as if no execution had been issued on the judgment until after the expiration of a year, and the lien of the judgment had ceased at the time the defendant conveyed the property in question to Jesse L. Nason, from whom the petitioner acquires title by mesne conveyances. At the time the petitioner acquired title, the record in this case showed that the execution had never been delivered to the marshal, and justified the purchaser from the defendant in assuming that the judgment had ceased to be a lien upon this property at the end of the year from the time the judgment rendered. I am therefore of the opinion that the plaintiff has no right to levy an execution on petitioner's property. An order will be entered setting aside the levy under the execution upon the N. t of lot 10, in block 22. The execution will not be quashed because, possibly, it may reach other property.
MOSHER
v. ST.
LOUIS,
I. M. & T. Ry. Co. t March 20, 1885.)
(Circuit Court, E. D.
Jfis80U1'i.
OARRIERS OF PASSENGEIl8-PUHCHASEU OF RAILROAD TICKET BOUND TO COMPLY wITH ITS OONDITIONS.
A limited railroad ticket, by an express provision of a contract therein contained and signed by the purchaser, was good for a return trip, provided the purchaser identified himself to the" authorized agent" of the railroad at his destination, and the ticket was" officially signed, and dated in ink, and duly stamped by said agent." The purchaser presented himself at the proper office at a proper time, hut the authorized agent was absent, and failed to appear before the train, which the holder of the ticket desired to take, started. He therefore proceeded on his return trip without complying with the condition, and presented said ticket to the conductor and explained said circumstances. The conductor refused to accept it and demanded the usual fare, which being refused, he removed the passenger from the train. Held, that such removal gave the holder of said ticket no cause of action.
Demurrer to Amended Petition. The amended petition differs from the original (17 FED. REP. 880) in stating that the plaintiff presented himself and ticket at the business office of the defendant's "authorized agent" at Hot Springs, bis lReported by Benj. F. Rex, Esq., of the St. Louis bar.
MOSHER V. ST. LOUIS, I. M. & T. RY. CO.
827
original destination, "during business hours, and a reasonable time before the time of departure of its train for St. Louis that plaintiff desired to take and did take, and was ready and willing, and then and there offered, to identify himself as the original purchaser of said ticket," etc., but that there was no authorized agent there, and that none appeared before the departure of the train which the plaintiff desired to and did tal{e. For opinion on motion to remand, see 19 FED. REP. 849. E. P. Johnson and William M. Eccles, for plaintiff. Bennett Pike, for defendant. BREWER, J., (orally.) The question in this case has been argued the third time in this court. I do not see that this amended petition changes the substantial facts in any respect. It still appears, as heretofore, that the plaintiff purchased a ticket called a round-trip ticket from here to Hot Springs and return. That ticket contained an express contract, which in terms provided that it should be presented to the station agent at Hot Springs, and by him stamped upon the back, after being satisfied that the person presenting it was the person to whom the ticket was issued. It was a limited ticket with special rates. Upon that ticket the plaintiff went to Hot Springs, no objection being made. He was ready to return, but the agent not being present at the ticket office at Hot Springs, the ticket was not presented to him, the holder was not identified, nor the ticket stamped by him. With that ticket unstamped, without any identification, the plaintiff started tO,come back to St. Louis. He rode from Hot Springs to Malvern without objection, but froin Malvern, coming this way, upon the Iron Mountain road, the conductor objected and refused to take that ticket. The plaintiff was removed from the train, and he brings this action to recover damages for the expulsion. I dissent entirely from the construction placed upon the ticket by counsel at this time, and now for the first time. Heretofore it was conceded that the ticket required upon its face an indorsement stamped by the station agent at Hot Springs. This time counsel seems to claim that it did not require anything of the kind. I think it did. The language is plain. The authorities which have been cited by counsel do not come up to this case, for here, when the plaintiff took that ticket he entered into an express contract. It is not a question of implied contract, or of rights independent of a contract. The plaintiff took tbat ticket, signing it at the time he took it, thereby creating an express contract between him and the railroad company, by which the ticket was to be good for a return passage when, and only when, indorsed by the agent at Hot Springs, and when the owner and holder had been identified there to his satisfaction. The conductor, when the ticket was presented, saw no stamp upon it. The plaintiff had not been identified, and the rules of the company, binding upon him as a conductor, required him to remove the party unless he paid his fare. Now, can
FEDERAL REPORTER.
it be that the railroad company is responsible because the conductor did that which, by the rules of the company,-reasonable rules, too, -in pursuance of his duty, he ought to have done? Grant. that there was an implied contract that the station agent should have been at the Hot Springs depot. If the plaintiff had sued for a breach of that contract, and had asked the amount which he was compelled to pay ill order to purchase a return ticket, then a very different questiun would have arisen. But here he relies on the fact that the expulsion from the train was unlawful, because the conductor ought to have taken his statement instead of that evidence which was provided by the contract, viz., identification and the stamp of the agent at Hot Springs. It certainly would introduce a very uncertain rule of procedure if a conductor could not rest upon the faith of the ticket which is presented to him; if he is bound to act as a judicial tribunal, and take testimony and inquire into the excuses or reasons for the non-perfection of a ticket which is presented to him. The party took the ticket upon the face of which was the express stipulation that before it should be good for a return passage the holder should be identified by the agent at Hot Springs, and he should stamp that ticket on the back. Now, the party says: "Why, I wanted to prove to the railroad conductor that I was the man-the party who took that ticket in the first instance." Can the courts cast upon the conductor the duty of entering upon a judicial investigation? Of course the conductor could not at the instant secure counter-testimony, and he ,WOUld be bound to take the statement of the party as to the facts of the case independent of the express language of the ticket. I do not think that the conductor is bound to do anything of the kind. I think he has a right to rely upon the language of the contract as expressed in the ticket. If the party was injured by the negligence or wrong of somebody else, he should have paid his fare back and then sued to recover the amount which he had been compelled to pay owing to the omission, negligence, or misconduct of the agent at Hot Springs. As I said, this is the third time this question has been presented by demurrer, and while the petition has been changed from time to time, yet the substantial facts still remain to-day as they were in the first instance. l'he demurrer will be sustained. . The party, of course, will have his exceptions. Judgment will be found for the defendant, and as the ad damnum clause is over $5,000, he can take it to the supreme court of the United States, and there settle the question which by it has not yet been determined definitely. It has been determined one way and another by the courts of the different states, but the question whether a conductor is justified in acting on the letter of the ticket presented to him, or is bound to take the statement of the passenger as to matters conceruing which the ticket makes express provision, and whether, if he mistakes, the company is responsible, has not yet been settled by the supreme court of
IX
RE
AH PHW.
32D
the United States, but can be settled in this case if the plaintiff desires. The demurrer will be sustained, and judgment entered for the defendant. .
In re An 1.
PING.
(Oircuit Oourt, D. (]alijor,,;'I{. March 30, 1885.) CHINESE IMMIGRATION-J\hRCHANT TEMPOHARILY ABSENT-HIGHT TO RET un" WITHOUT CEnTIFICATE,
The sixth section of the Chinese restriction act of 1882, as amended by the act of 1884, is not applicable to a Chinese merchant, one of a firm residing and doing their principal business in the United States, who temporarily departed therefrom before the passage of said act to attend to a branch of the said firm's business in British Columbia, and who returned to the United States after the passage of said act; and he may re-enter the United States without produeing the certificate required thereby. Section 6 of the restriction act is not applicable to Chinese subjects, residents of the United States, who left the United States for foreign countries for temporary purposes, intending to return LJefore the passage of the amendatory aet of 1884, having a right to return at the time of their departure, and who did not return till after the passage of the act; nor to Chinese subjects, residents of the United States, departing for temporary purposes of business or pleasure since the passage of the act.
2.
SAME-CONSTRUCl'ION OF RESTHICTION ACTS.
Appeal from District Court. Tkos. D. Rim'dan, for petitioner. S. G. Hilborn, U. S. Atty., contra. Before SAWYER and SABIN, JJ. SAWYER, J. This is an appeal from the district court. The petitioner is a Chinese subject of the Mongolian race, a merchant, not a Chinese laborer, and a member of the old and well-known firm of Hop Sing & Co., doing a mercantile business in the city and county of San Francisco, of which firm he has been a member since 1877. He resided in the United States continuously for the period of eight years prior to his temporary visit to China. In 1879 he departed from CalifornIa for the purpose of visiting China, and returned to the United States on November 30, 1881, before the passage'of the inal Chinese restriction act. He remained at San Francisco from the last-named date, attending to the business of his said firm, until February 1, 1882, when he departed for Victoria, British Columbia, to temporarily attend to the business of the firm, which has a branch house at that place. On July 19, 1884, after the passage of the Chinese restriction act, he departed from Victoria, and arrived at the port of San Francisco by sea July 23, 1884. He did not produce any certificate of the kind required by section six of the restriction act as amended in 1884, or as required by the act of 1882. The question upon this state of facts is whether said Ah Ping is entitled