Emigh v. Pittsburgh, Ft. W. & C. R.

MCDONALD, District Judge.

This is an action on the case for wrongfully putting the plaintiff off a train of the defendant’s passenger cars.

There are two counts in the declaration, and a demurrer to the whole declaration is filed, for the cause that there is a misjoinder of counts.

*651The first count is undoubtedly in case. But the defendant insists that the second count is in assumpsit and not in case.

The charge in the second count is substantially as follows: that the defendant was a common carrier of persons from Pittsburgh through Indiana to Chicago; that for a valuable consideration paid to…