Page:Harvard Law Review Volume 1.djvu/33

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it was then used within the meaning of the contract. It could then have been taken up. So far as the plaintiff was concerned it had then performed its office. It was thereafter left with him not for his convenience, but under regulations of the defendant for its convenience, that it might know that his passage had been paid for.”

These few examples will perhaps show clearly the distinction between a ticket and a receipt or voucher, and will make it evident that a ticket is a contract. It yet remains to consider what is the nature of the contract.

It will be noticed that a ticket was defined to be an obligation to give something, not money, to the bearer. An obligation to give money to the bearer is a bill, note, or bank-check. It appears, therefore, that there is some analogy between tickets and promissory notes; an analogy that has frequently been noticed in the cases. In view of this analogy the theory naturally suggests itself that a ticket is not a consensual, but a formal, contract, and is to be governed by the principles of the law merchant, and not of the common law.

That there are business customs as clearly and firmly established with regard to tickets as the custom of merchants was, with regard to bills of exchange, in Lord Holt’s time, is patent to every one. Nor is there any greater reason why the common law should recognize the custom with regard to bills than that it should recognize the custom with regard to tickets. Even Lord Holt could not prevent the law of Lombard street from moulding the law of England; and after Lord Holt failed to keep promissory notes out of the realm of law no judge dared frown on bills of lading, or bank-checks, or letters of credit. And, if the custom of merchants with regard to bills of lading is recognized by the courts, there seems to be no good reason for refusing recognition to the custom of merchants with regard to tickets.

For the custom is a mercantile one. Tickets are issued in the course of recognized trades. The railroad, the theatre, the inn-keeper, are as fairly in trade, as fairly merchants, as the ship-master, the banker, or the broker. A mercantile contract is not necessarily for the payment of money. A bill of lading is for the delivery of goods; yet it is admitted that the custom governs. Government-bond scrip is for the delivery of a bond, but it is a recognized mercantile contract. Nor is it to be admitted that no new custom will be engrafted into the law. As Cockburn, C. J., said,