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B.G. Horniman, In Re

Bombay High Court

Sep 19, 1932

Judgment

Subsequent
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Summary of Opinion delivered by Patkar, J. (with concurrence by Barlee, J.)

Factual and Procedural Background

This opinion arises from an application by the petitioner (Mr. Horniman) for revision of an order made by the Presidency Magistrate, Third Court, under Sections 113(2), (3) and (4) of the Railways Act, 9 of 1890. The Magistrate had directed the petitioner to pay Rs. 48-11-0 to the G.I.P. Railway and further directed that the amount, if not paid, should be recovered as a fine. The railway company raised a preliminary objection that the application for revision did not lie, relying on decisions including In re Dalsukhram and Secretary of State v. Gobindram Jaichandrai. The petition challenged (inter alia) the substantive liability to pay the excess charge and the penalty, and advanced factual claims about the petitioner’s justification for travelling in a higher-class carriage without a higher-class ticket.

Legal Issues Presented

Whether an application for revision lies against an order made by a Magistrate under Section 113(4) of the Railways Act — i.e., whether the Magistrate acting under S.113 exercises a judicial function and is an "inferior criminal Court" within the meaning of Section 435 of the Criminal Procedure Code (CrPC) so as to make the order revisable.
Whether proceedings under Section 113 of the Railways Act are criminal prosecutions (offences) or civil/executive recovery proceedings, and whether imprisonment in default may be imposed under S.113.
Whether the absence of a written authorization under Section 145(1) to act for the railway before a criminal court (as asserted by the applicant) vitiates the proceedings under S.113(4).
Whether the petitioner was justified as a matter of law and fact in travelling in a first-class carriage on a second-class ticket (because of lack of reasonable accommodation and presence of "pardanshin ladies"), thereby negating liability under S.113(2) and (4).
Whether the penalty and excess charge (total Rs. 48-11-0, including an alleged Rs. 6 penalty) were correctly levied under the statutory scheme (including whether a lesser penalty of Re. 1 applied).

Arguments of the Parties

Applicant / Petitioner (Mr. Horniman)

Contended he was justified in refusing to travel in the second-class compartment (purchased ticket) because of the presence of pardanshin ladies and asserted lack of reasonable accommodation; therefore, he was entitled to travel in a higher class.
Argued that, because reasonable accommodation was not provided in the class for which he had a ticket, the railway company under its contract was bound to provide reasonable accommodation, which the petitioner says justified entering a first-class carriage.
Challenged the amount levied: asserted that the penalty of Rs. 6 was not due and that the proper penalty under the relevant clause was Re. 1.
Contended that the railway agent who filed the complaint (Mr. Londe) lacked written authorization under Section 145(1) to act for the railway in a criminal court, and that this defect vitiates the proceedings.

Respondent / Railway

Raised a preliminary objection that the revision application did not lie, relying on authorities such as In re Dalsukhram and Secretary of State v. Gobindram Jaichandrai to argue that the Magistrate’s role was not that of an inferior criminal court for purposes of CrPC revision.
Contended the Magistrate mentioned in S.113 is a persona designata and acts in an executive or civil capacity in recovering sums under S.113, and thus the proceedings were not criminal.
Argued that Section 145(1) relates to appointment to conduct proceedings in a criminal court and that a written instrument appointing the person to conduct the proceedings (Mr. Behere) existed; in any event, if the written appointment for Mr. Londe had not been produced, that was an irregularity that could have been cured or raised below.
Insisted the statutory provisions (Sections 67, 68 and 113) govern the right to travel in a higher class and the recovery of excess charges and penalties, and that travelling in a higher class without permission amounts to liability under S.113(2).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Dalsukhram	Held a Magistrate hearing an appeal under Section 86 (Bombay District Municipal Act, 1901) was not an inferior criminal Court within Section 435 CrPC because he dealt with a civil liability.	The Court considered this decision but distinguished it from S.113 proceedings because S.113 recovers not only the fare (a civil sum) but also a statutory penalty; hence the nature of S.113 proceedings differs from the municipal appeal considered in Dalsukhram.
Secretary of State v. Gobindram Jaichandrai	Referenced as authority relied upon by the railway for non-revisability; the opinion notes the case but also states no adequate reasons were given there for the conclusion relied on.	The Court observed that reference is made to this case in the respondent's submissions but found the reasoning there insufficient to decide against revisional jurisdiction in respect of S.113 orders.
Bhimji N. Dalai v. B.B. & C.I. Ry. Co.	Established that liability to pay under the statutory provision arises from the statute (not contract), and the statute prescribes recovery by the Magistrate as if it were a fine paid to the railway administration.	Used to support the proposition that S.113 creates a statutory liability recoverable by a Magistrate as if it were a fine, reinforcing that S.113 is a statutory summary remedy.
Queen-Empress v. Kutrapa	Held that imprisonment in default of payment cannot be inflicted under Section 113 of the Railways Act; recovery must be by attachment and sale of movable property.	The Court cited this authority to show the limits of S.113's remedial powers and to support the characterization of S.113 proceedings as not permitting imprisonment in default.
Queen-Empress v. James Crowson; Queen-Empress v. Subramania Ayyar; Queen-Empress v. Ram Pal; Station Master, Ranaghat v. Habul Sheikh; Emperor v. Ma Kalay Ma	Instances where High Courts interfered under revisional powers with orders under S.113 when imprisonment in default of payment of fine was inflicted.	The Court noted these cases show High Courts have exercised revisional jurisdiction in S.113 matters where imprisonment in default was involved, though it observed that the specific point now argued (revisability absent imprisonment) was not raised in those cases.
A. Grey v. North-Western Railway Administration	Held that proceedings of a Magistrate under S.113 are judicial proceedings and fall within Sections 435 and 439 of the CrPC (following Queen-Empress v. Manaji).	The Court relied on this authority (and the line it follows) to support the conclusion that S.113 proceedings are judicial in nature and therefore open to revision under CrPC revision provisions.
Queen-Empress v. Manaji	Authority used for the proposition that proceedings under S.113 may be judicial and fall within the ambit of CrPC revision provisions.	Followed as part of the precedent chain establishing that S.113 proceedings can be judicial and revisable under the CrPC.
Emperor v. Devappa Ramappa Naik	Stated the test is the nature of the Court in which the proceeding is held, not merely the nature of the proceeding itself.	The Court cited this case to support the view that even proceedings that appear civil may be revisable if held in a criminal court; this informed the conclusion that Magistrate's S.113 proceedings are revisable by High Court under S.435 CrPC.
Dinbhai Jijibhai, In re	Held orders under Section 161(2) (Bombay District Municipal Act, 1901) can be revised by the High Court and that inquiries by a Magistrate in such contexts are not purely ministerial.	Used to illustrate that inquiries requiring evidence and judicial determination by a Magistrate are not merely executive acts and thus are amenable to revision.
Hart v. Buskin (Calcutta High Court)	Observed that Section 113 may apply to ordinarily innocent persons who may find themselves in the wrong by mere accident.	Cited to reinforce the character of S.113 as applying to persons who may not be culpable in the criminal sense and to support the appropriateness of statutory civil-like summary recovery with a penalty element.

Court's Reasoning and Analysis

The Court’s analysis proceeds in clear stages, rooted in interpretation of the Railways Act and scrutiny of statutory scheme and procedure:

Character of S.113 and statutory scheme:
The Court examined the placement of S.113 within Chapter 9 of the Railways Act (penalties and offences) and noted that although S.113 appears under headings suggesting "other offences," the substance of sub-section (4) shows S.113 provides a summary remedy to recover statutory charges and a penalty. The liability under S.113 arises from statute (as held in Bhimji N. Dalai), not contract.
Whether S.113 creates an offence and whether imprisonment can be imposed:
The Court observed that S.113 is not an offence in the ordinary criminal sense — Section 132 indicates that acts under S.113 are not deemed to be offences, and S.131 makes no reference to S.113. The Court relied on Queen-Empress v. Kutrapa to recall that imprisonment in default cannot be inflicted under S.113 and that recovery is by attachment and sale of movable property.
Nature of the Magistrate’s function under S.113 (judicial vs executive) and revisional jurisdiction:
The Court weighed competing authorities. It distinguished decisions like In re Dalsukhram (where the Magistrate dealt with civil liability in a municipal context) from the present context, noting that S.113 involves a statutory penalty as well as recovery. The Court emphasized practical indicators of a judicial function: in the present proceedings evidence was taken, the applicant's statement recorded, and the Magistrate weighed evidence and made determinations on contested points of liability. The Court invoked the statutory definition of "judicial proceeding" in Section 4(m) CrPC (which includes proceedings where evidence may be taken on oath) and authorities (A. Grey, Emperor v. Devappa Ramappa Naik, Dinbhai Jijibhai) to conclude the Magistrate acts judicially when exercising powers under S.113.

Accordingly, the Court held that the High Court has power under Section 435 CrPC to call for and examine the record of proceedings before any inferior criminal court, including orders made under S.113(4), to satisfy itself as to correctness, legality or propriety; therefore a revision application can lie.
Procedural and evidentiary objections (Section 145 authorization):
The Court addressed the contention that the railway agent lacked written authorization under Section 145(1) to appear in a criminal court. Noting that the point had not been specifically taken before the Magistrate and that Mr. Londe had given evidence that the Chief Traffic Manager issued orders to file the complaint, the Court treated the absence of a produced written authority as at most an irregularity that did not prejudice the petitioner and did not vitiate the proceedings.
Merits: entitlement to travel in higher-class carriage and statutory interpretation:
The Court analyzed the petitioner’s substantive defence that he was entitled, by contract or necessity, to travel in first class on a second-class ticket due to lack of reasonable accommodation and the presence of pardanshin ladies. It examined Sections 67 and 68 of the Railways Act and concluded that the Act contains no provision entitling a person holding a lower-class ticket to travel in a higher class without permission. Section 67 deals with refunds in specified circumstances and Section 68 forbids entering a carriage without a proper ticket or the permission of a railway servant. Therefore, absent evidence that permission was obtained, S.113(2) clearly makes the passenger liable to pay the excess charge and any difference in fare on demand.

The Court also noted that several points (for example, whether Mr. Williams was a railway servant on duty, and certain factual contentions about immediate notification) were not raised before the Magistrate and therefore were not fully considered on revision.
Conclusion on merits:
Given the statutory clarity that travelling in a higher class without permission attracts liability under S.113 and the absence of controlling factual proof that permission had been obtained or that statutory exceptions applied, the Court concluded the excess fare together with the penalty was properly ordered by the Magistrate.

Holding and Implications

Holding: The application for revision fails and the rule is discharged. The Magistrate’s order directing the petitioner to pay Rs. 48-11-0 to the G.I.P. Railway (recoverable as a fine under S.113(4) if unpaid) is upheld. (Barlee, J. concurred.)

Implications:

The Court held that proceedings under Section 113 of the Railways Act, although providing a summary statutory remedy and not constituting an "offence" in the ordinary criminal sense, are judicial proceedings when evidence is taken and determinations made by a Magistrate; consequently, such orders are revisable under Section 435 of the CrPC. This affirms High Court revisional jurisdiction over S.113 orders when properly invoked.
The decision reaffirms that Section 113(2) and (4) of the Railways Act impose statutory liability for travelling in a higher class without permission and allow recovery (including a statutory penalty) by a Magistrate as if the amount were a fine — but imprisonment in default is not available under S.113 (per Queen-Empress v. Kutrapa).
On the facts before the Court, the petitioner was not entitled as a matter of statutory law to travel in a higher-class carriage on a lower-class ticket without the railway servant’s permission; therefore the excess fare and penalty were properly imposed. The Court declined to entertain certain factual lines not raised below.
Direct effect on the parties: the petitioner’s revision was dismissed; the Magistrate’s order for payment remains effective and the rule is discharged. The opinion does not purport to lay down a novel, broad principle beyond the interpretation and application of the cited authorities and statutory provisions to the facts before it.

Note: This summary is strictly confined to the material and conclusions contained in the provided opinion and does not add facts or legal propositions beyond what the opinion itself states.

Show all summary ...

Patkar, J.:— This is an application by the petitioner for revision of the order passed by the Presidency Magistrate, Third Court, under Sections 113(2), (3) and (4) of the Railways Act 9 of 1890, directing him to pay Rs. 48-11-0 to the G.I.P Railway, and further directing that the amount, if not paid, should be recovered as a fine. A preliminary objection is raised on behalf of the railway company that the application for revision does not lie, and reliance is placed on the decisions in the cases of In re Dalsukhram (1) and Secy. of State v. Gobindram Jaichandrai (2). The proceeding under Section 113 of the Railways Act, is not a prosecution for an offence. Section 68 of the Railways Act, prohibits travelling without a pass or a ticket, and S. 69 provides that every passenger shall, on the requisition of a railway servant appointed by the railway administration in this behalf, present his pass or ticket to the railway servant for examination. S. 113 provides for the consequences of the breach of this statutory obligation. Ch. 9 of the Act, which contains S. 113, deals with penalties and offences. Ss. 87 to 98 deal with penalties, Ss. 99 to 105 deal with offences by railway servants, and Ss. 106 to 130 are included under the heading of “other offences” and Ss. 131 to 134 are included under the heading of “procedure.” Though S. 113 is included under the heading “other offences,” sub-S. (4), S. 113, provides:

“If a passenger liable to pay the excess charge and fare mentioned in sub-S. (1), or the excess charge and any difference of fare mentioned in sub-S. (2), fails or refuses to pay the same on demand being made therefor under one or other of those sub-sections, as the case may be, the sum payable by him shall, on application made to any Magistrate by any railway servant appointed by the railway administration in this behalf, be recovered by the Magistrate from the passenger as if it were a fine imposed on the passenger by the Magistrate and shall, as it is recovered, be paid to the railway administration.”

2. The intention to defraud is not necessary as in the cases falling under S. 112 to enable the railway administration to proceed under this section. The section provides a summary remedy to recover the charge incurred by a passenger together with a penalty provided in the section. According to the decision in Bhimji N. Dalai v. B.B & C.I Ry. Co. (3), the liability to pay does not arise from the Contract but from the statute, and the statute prescribes the method by which the amount a passenger is liable to pay can be recovered, and the amount is to be recovered by the Magistrate as if it were a fine imposed on the passenger, and paid to the railway administration. In Queen-Empress v. Kutrapa (4) it was held that imprisonment in default of payment cannot be inflicted under Section 113 of the Railways Act. The amount can only be recovered by attachment and sale of moveable property. The proceeding under S. 113 is not a prosecution for an offence. Though S. 113 is included among Ss. 106 to 130, which are placed under the heading of “other offences,” the classification appears to be misconceived, for some of these sections do not relate to offences, and S. 132 indicates that the acts committed under S. 113 are not deemed to be offences. S. 131 makes no reference to S. 113 and S. 132 refers to any offence other than that mentioned in S. 131 and specifically refers to failure or refusal to pay excess charge demanded under S. 113. It is clear therefore that the act referred to in Section 113 of the Railways Act, is not an offence.

3. Further, S. 133 provides that offences under the Act shall be tried by a Presidency Magistrate or a Magistrate whose powers are not less than those of a Magistrate of the Second Class, but proceedings under S. 113 may be taken before any Magistrate, including a Magistrate of the Third Class. It is contended on behalf of the opponent that the Magistrate mentioned in S. 113 is a persona designata and that the proceeding relates to recovery of money and is a civil proceeding, and the action of the Magistrate under S. 113 is in his executive capacity. In In re Dalsukhram it was held that a Magistrate hearing an appeal under Section 86 of the Bombay District Municipal Act, 1901, was not an inferior criminal Court within the meaning of Section 435 of the Cr PC, on the ground that he had jurisdiction given by the Act to deal with the question of a civil liability. S. 86 invests a Magistrate with appellate powers against a notice of demand issued under sub-S. (3), Section 82 of the Bombay District Municipal Act, 3 of 1901, and the Magistrate in that case exercises an appellate authority against the executive order of the notice of demand under sub-S. (3), Section 82 of the Bombay Act 3 of 1901. Under Section 113 of the Railways Act, it is not merely the sum which is due to the railway company in the form of fare that is recovered but also the penalty provided by the section. In Secy. of State v. Gobindram Jaichandrai reference is made to several cases, but no adequate reasons have been given to support the conclusion arrived at in that case.

4. It appears however that the High Courts have interfered under the revisional powers with orders under Section 113 of the Railways Act, when imprisonment in default of payment of fine was inflicted under Section 113 of the Railways Act: see Queen-Empress v. Kutrapa , Queen-Empress v. James Crowson (5), Queen-Empress v. Subramania Ayyar (6), Queen-Empress v. Ram Pal (7), Station Master, Ranaghat v. Habul Sheikh (8) and Emperor v. Ma Kalay Ma (9). It is true that the point now taken was neither raised nor considered in those cases. The question therefore arises whether the Magistrate acting under S. 113 exercises a judicial function or an executive function, and whether the Magistrate is an inferior criminal Court within the meaning of Section 435 of the Cr PC In A. Grey v. North-Western Railway Administration (10) it was held, following the decision in Queen-Empress v. Manaji (11), that the proceedings of the Magistrate under S. 113 are judicial proceedings and fall within the ambit of Sections 435 and 439 of the Cr PC. Under Section 4(m) of the Cr PC, “judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath. Proceedings, though of a civil nature, e.g, proceedings of the Magistrate under Section 2 of the Workmen's Breach of Contract Act, or Section 488 of the Cr PC, if they are held by a criminal Court, are subject to revision under Section 435 of the Cr PC. I may refer in this connection to the case of Emperor v. Devappa Ramappa Naik*. (12), where the test laid down is not the nature of the proceeding held by the Court but the nature of the Court in which that proceeding is held. In Dinbhai Jijibhai, In re (13), it was held that the order passed by the Magistrate under Section 161(2) of the Bombay District Municipal Act, 1901, can be revised by the High Court, and it was held that as the Magistrate has to make some inquiry in a proper case there is no reason to treat such an inquiry as purely ministerial.

5. In fact the proceedings in the present case were conducted in the same manner as a judicial proceeding. Evidence has been taken, the statement of the applicant is recorded, and the evidence is weighed by the learned Magistrate. It is difficult to hold that such a proceeding is merely a ministerial or executive proceeding, and not a judicial proceeding. Under S. 113(4) the Magistrate has to decide whether the sum is payable by the passenger, and for that purpose he has to take evidence in the case on any of the points on which the passenger contends that the sum is not payable, and the Magistrate has to recover the sum payable including the penalty as if it were a fine imposed on the passenger by the Magistrate. S. 435 empowers the High Court or any Sessions Judge or District Magistrate or any Sub-Divisional Magistrate specially empowered to call for and examine the record of any proceeding before any inferior criminal Court in order to satisfy itself as to the correctness, legality or propriety of any finding or order. “Proceeding” is a very wide term, and would include any judicial proceeding taken before any inferior criminal Court even though it may not relate to any specific offence. I think therefore that the High Court has the power to revise any order passed by a Magistrate under S. 113(4) and the fails.

6. On the merits is contended on behalf of the applicant, first, that under S. 145(1) there must be an authorization in writing to act for or represent the railway company before any criminal Court and that no such authority in writing has been produced by Mr. Londe to enable him to file the complaint in the present case. The point does not seem to have been taken specifically before the Magistrate. Under S. 113(4) the application is to be made to the Magistrate “by any railway servant appointed by the railway administration in this behalf.” It is contended on behalf of the railway company that S. 145 refers to a person who is appointed to conduct the proceedings in a criminal Court, and that in the present case Mr. Behere was appointed to conduct the proceedings by an instrument in writing. Mr. Londe in his cross-examination has stated that the Chief Traffic Manager has issued orders for filing this complaint, and it is contended on behalf of the opponent that if this point had been taken in the lower Court, they could have produced the order in writing appointing Mr. Londe to make an application under S. 113(4). I think that the point does not, in my opinion, vitiate the proceedings as at the most it is merely an irregularity which does not prejudice the petitioner, and the point ought to have been taken specifically before the lower Court. It is next urged on behalf of the applicant that the sum of Rs. 48-11-0 was wrongly levied from the applicant and the penalty of Rs. 6 was not due, but only a penalty of Re. 1 under sub-S. (3), Cl. (a). There is no evidence in the case that the applicant immediately after incurring the charge and before being detected by the railway servant notified to the railway servant on duty with the train the fact of the charge having been incurred. This point also does not appear to have been taken before the Magistrate, and it is therefore not necessary to go into the question whether Mr. Williams was a railway servant on duty with the train.

7. The next point is the most important point in the case, and it is urged on behalf of the applicant that he was justified in not travelling in the second class compartment for which he had purchased the ticket and in which there were pardanshin ladies, and it is contended on his behalf that so long as there was room available in the train, the railway company was bound under the contract to provide him reasonable accommodation. It is difficult to hold on the evidence that the applicant was not justified in refusing to travel in the second class compartment in which there were pardanshin ladies. The question however arises whether he was justified in travelling in a first class compartment without the permission of a railway servant when he had not purchased a proper ticket for the first class but had purchased only a second class ticket. Under Section 67 of the Railways Act, fares shall be deemed to be accepted, and tickets to be issued, subject to the condition of there being sufficient room available in the train for which the tickets are issued. But S. 68 provides that no person shall without the permission of a railway servant, enter any carriage on a railway for the purpose of travelling therein as a passenger unless he has with him a proper pass or ticket. It is contended on behalf of the applicant that if there was room available in the train, in a class higher than that for which the passenger had purchased a ticket, the railway company was bound under the contract to provide reasonable accommodation for him, and that in the absence of reasonable accommodation, he was entitled to enter even a higher class and the ticket which he has purchased for the lower class would be a proper ticket. It is difficult to accept this argument. There is no provision in the Railways Act, which entitles a person, who has purchased a ticket of a lower class, to enter a compartment of a higher class without a proper ticket for that class. We are not concerned here with the question whether the railway authorities should not have acted more discreetly in the matter having regard to the circumstances of the case and allowed the applicant to travel in the first class when there was no proper or reasonable accommodation in the second class for which he had purchased a ticket and in which under the circumstances mentioned by him he was prevented from travelling.

8. Section 68 of the Railways Act, prohibits a person entering any carriage without the permission of a railway servant unless he has a proper pass or ticket. It appears from the provisions of the Railways Act, that if he is unable to travel in the class for which he has purchased a ticket, he can apply for his fare being refunded under S. 67, sub-S. (2), on his returning the ticket within three hours after the departure of the train, or under sub-S. (3) S. 67, if there is no room available in the class of the carriage for which he has purchased a ticket, and he is obliged to travel in a carriage of a lower-class he shall be entitled on delivering up his ticket to a refund of the difference between the fare paid by him and the fare payable for the class of carriage in which he has travelled. He can therefore either have his fare refunded or have the difference refunded to him if he travels in a carriage of a lower class. But if he intends to travel in a carriage of a higher class it is clear that there is no section in the Railways Act which empowers him to do so. Under S. 68 he could have travelled in a higher class with the permission of the railway servant. But in the present case it is not proved that the applicant secured the permission of a railway servant before entering a carriage of a higher class. The consequences of traveiling by a higher class without the permission of a railway servant under S. 68. Railways Act, are provided for by sub-S. (2), S. 113 which lays down that if a passenger travels or attempts to travel in or on a carriage, or by a train, of a higher class than that for which he has obtained a pass or purchased a ticket he shall be liable to pay, on demand by any railway servant appointed by the railway administration in this behalf the excess charge in addition to any difference between any fare paid by him and the fare payable in respect of such journey as he has made. S. 113, Cl. (2) is clear and explict, and admits of no implications or exceptions.

9. Section 113 applies not to offenders against justice but ordinarily to innocent persons, who, as stated in the judgment of the Calcutta High Court in Hart v. Buskin (14), “may find themselves in the wrong by mere accident.” I think therefore that the excess fare together with the penalty was properly ordered to be recovered by the learned Magistrate. The, result therefore is that this application fails and the rule will have to be discharged.

10. Barlee, J.—I agree. Even assuming that in the circumstances there was no sleeping berth available in the second class, Mr. Horniman must fail. I cannot find anything to justify his view that he was entitled to travel by first class on his second class ticket. The relations between him and the railway company were governed not only by contract but by statute, and the Act is quite clear. Section 113(2) of the Railways Act, runs:

“If a paasenger travels or attempts to travel in or on a carriage, or by a train, of a higher class than that for which he has obtained a pass or purchased a ticket … he shall be liable to pay, on demand… the excess charge, etc.”

11. To this rule there is no exception in the Act. The learned counsel has referred us to Ss. 67 and 68, but in my opinion they do not help him. S. 67 provides that a person for whom there is no room in the train for which he has purchased a ticket or who is obliged to travel in a carriage of a lower class, shall be entitled to a refund of the fare paid or to a refund of the difference between the fare paid by him and the fare payable for the lower class. There is nothing in the Act to show that he can, in any circumstances, travel by first class on a second class ticket.

V.S

12. Rule discharged.