evidence of the special contract between the defendant and the plaintiff, and in this respect the opinion is convincing; but in the constructive part of the argument the reasoning is not perfectly clear.
The name of Denio was enough to give this theory an importance and a currency beyond its merits. It is hardly held, now, as a working theory in any jurisdiction; but phrases are often thrown out, in passing, by the judges which show that the theory at some time approved itself to their minds. Thus Agnew, J., said, in Dietrich v. R. R. Co.,[1] “Tickets are evidence of the payment of the fare, and of the right of the holder, or party named, as here, to be carried according to its terms.” Lord Chelmsford, in Henderson v. Stevenson, said[2] “The moment the money for the passage is paid and accepted, their obligation to carry and convey arises. It does not require the exchange of a ticket for the passage-money, the ticket being only a voucher that the money has been paid.” This is the most logical statement of the doctrine under consideration that has ever been made; yet the noble and learned lord was so little satisfied with it that he went on in his next words to outline an alternative theory.
This theory is objectionable for many reasons. Payment of the money to the ticket-agent does not, unless the payer secures a ticket, give the right to ride.[3] Nor has a ticket-holder in very many cases paid his fare; for instance, where a free pass is issued on some consideration, which is not the payment of fare, or where the purchaser of the ticket has sold or given it to the passenger. But the principal objection to the theory is this: it is impossible to pay for anything before one gets it. “Payment in advance,” so called, is really a payment which is the consideration of a promise to perform; otherwise the payment would be without consideration, and, not being meant as a gift, might be recovered. The payment of fare on the train is payment made concurrently with performance on the other side. There is no contract on either side. So in case of the payment of the price of admission to a theatre; it is made at the time of admission, and is not to secure a contract. If the actress is ill, and cannot appear, the one who has paid the price of admission is entitled to have it refunded, because his consider-
