not to be he was entitled to take advantage of the carrier's mistake. He did in fact make a mistake; he accepted the carrier's mistaken account enuring to his own advantage, and in this sense there was a mutual mistake. But there was no necessity of mutual mistake. The carrier is entitled to relief from his own mistake unless it has conclusively prejudiced the consignor, and thus created an estoppel in his own favor. The trial court in this case found as a fact that all the grain that was received on board was delivered to the consignee, and it appeared that the discrepancy was 1502 bushels! This was attributed for by the trial court to errors in tallyings. It would seem to be a serious perversion of justice to charge the carrier for an omission to deliver such a material amount, which clearly he never received, simply by reason of his mistake in the recital of the amount received in connection with contractual language not applicable to the consignor, and in circumstances which cannot legally have prejudiced him. I cannot understand the reasoning of the court when it says: "The language of the contract is broad enough to protect the shipper as well as the consignee against the carrier's mistake." The language about "freight" shows that is intended to apply only as between carrier and consignee, it does not purport to be for the protection of the shipper; he is capable of protecting himself, and there is no conceivable reason why he should not do so, nor why he should be accorded protection through the carrier's contract with the other party. The parties are not on the same footing. The consignee is necessarily ignorant; the shipper is only ignorant because he prefers to be. The decision in question would give the consignor the benefit of a deliberate fraud on the carrier as well as of an innocent mistake. If the decision in question is not equivalent to that, it is practically as bad, for it allows him to take advantage of an innocent and unquestioned

mistake.

As one gets a new and striking impression of landscape or portrait by viewing the reflection of it in a mirror, so a very good test of the soundness of this decision may be made by reversing the circumstances, and supposing that there had been by mistake an excess in the cargo. Would the carrier have been

entitled to that excess as against the consignor by reason of the alleged conclusive effect of the stipulation in the bill of lading? It would be difficult to imagine such a construction, and yet "it is a poor rule that will not work both ways." The question so supposed has actually arisen and been decided by a Canadian court, in Murton v. Kingston & Montreal Forwarding Co.' The clause there read: "All deficiency in cargo to be

paid for by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee." There was an excess of 500 bushels, for which the defendants had accounted to the shipper, and it was held that the plaintiff, the carrier, was not entitled to recover it from the defendants as his own. The trial judge charged that "the first part of the clause in question would mean a deficiency in cargo caused by the act or defect of the carrier. If he did not receive the full cargo he would not be liable as long as he delivered all he received. And it would be open to him under this bill of lading to prove that there was a mistake, although he had signed a bill of lading which acknowledged he had received a smaller "(larger)?" number of bushels. "The second clause does not mean that the carrier is to get the money for the excess and keep it for himself; he is to account for that to the shipper." On appeal the court observed; "The bill of lading is conclusive only as between the master or person who signs it and the consignee or indorsee for value. It is conclusive in no other cases or between any other persons. The facts have only to be stated to show the absurdity and unreasonableness of the claim. The forwarder ships (as was illustrated by the learned judge at the trial), twenty-one horses, when he should have sent twenty only. The carrier says he is entitled to keep the extra horse, although it is proved, and he himself admits it was sent by mistake. In like manner, if half a dozen carriages with a pair of horses for each carriage were shipped, and five only should have been sent, the carrier is to keep the extra carriage and horses. There is no kind of doubt the shipper can show the mistake and recover the property, which is not covered by the bill of lading, and so also can the actual owner of it." 7 32 U. C., C. P. 366.

Supreme Court of Indiana, May 21, 1897.

A railroad company may lawfully designate the places abutting on its station platform where the owners of competing omnibus lines shall stand their vehicles to receive and discharge passengers and baggage.

MONKS, J.: This action was brought by appellees to enjoin appellants from interfering with appellees in the use of a certain part of the depot grounds of the Evansville & Terre Haute Railroad Company; being 21 feet north and south along the platform, and 28 feet running west from the platform. Appellants filed three paragraphs of answer to the complaint. Appellees' demurrer to the first and second paragraphs of answer was sustained. A trial by the court resulted in a finding and (over a motion for a new trial) a judgment in favor of appellees.

It appears from the evidence that appellants were engaged in the livery business, and for several years had been running a bus line to and from the depot, carrying passengers and baggage, and during all of said time had occupied the part of the depot grounds in controversy for the purpose of discharging and receiving passengers and baggage, and standing their busses and baggage wagons while awaiting the arrival and departure of trains. The part of the depot platform used by appellants was 21 feet in length, and wide enough to stand three busses or two busses and a baggage wagon. This space, 21 by 28 feet, was leased to appellants by the railroad company for that purpose at an annual rental of $15, the railroad company reserving the right to cancel the lease at any time. Appellants drove their baggage wagon and one or two busses, as the demands of travel required. A short time before the commencement of this action, appellees engaged in the livery business, and began running a bus line to and from the depot for the carrying of passengers and baggage, driving one bus and a baggage wagon. There was a controversy between appellants and appellees as to the right to occupy the part of the depot grounds theretofore used by appellants. The railroad company and appellants offered to assign the north one-third of the space adjacent to the platform to appellees, being 7 by 28 feet, upon which to stand their bus and receive and discharge passengers and baggage. This offer was

refused by appellees, they demanding that the north one-half of the ground in controversy be assigned to them. Appellees offered to accept the space tendered if appellants would only run one bus. This proposition, was refused by appellants. We are not required in this case to determine whether a railroad company can grant the exclusive privilege to one of several competing omnibus lines to occupy the depot grounds with its vehicles, and solicit the patronage of incoming passengers, or the exclusive right to use its platform and grounds for the receiving and discharging of passengers and baggage. These questions are regulated in some States by constitutional and statutory provisions. The decisions of the courts, however, are conflicting, as shown by the following cases: Railroad Co. v. Tripp, 147 Mass. 35, 17 N. E. Rep. 89; Com. v. Carey, 147 Mass. 41, 17 N. E. Rep. 97; Com. v. Power, 7 Metc. (Mass.) 596, 41 Am. Dec. 465, and note; Barry v. Steamboat Co., 67 N. Y. 301; Railroad Co. v. Flynn, 74 Hun, 124, 26 N. Y. Supp. 859; Railroad Co. v. Sheeley (Sup.) 27 N. Y. Supp. 185; Smith v. Railroad Co., 149 Pa. St. 249, 24 Atl. Rep. 304; Fluker v. Railroad, 81 Ga. 461, 8 S. E. Rep. 529, 12 Am. St. Rep. 328, and note; Harris v. Stevens, 31 Vt. 79; Landrigan v. State, 31 Ark. 50; Griswold v. Webb, 16 R. I. 649, 19 Atl. Rep. 143; Barker v. Railroad Co., 18 C. B. 46; Hole v. Digly, 27 Wkly. Rep. 884; Painter v. Railroad Co., 2 C. B. (N. S.) 702; Beadell v. Railway Co., Id. 509; Marriott v. Railroad Co., 1 C. B. (N. S.) 499; Cole v. Rowen, 88 Mich. 219, 50 N. W. Rep. 138, 13 Lawy. Rep. Ann. 848, and note; Bus Co. v. Sootsma, 84 Mich. 194, 47 N. W. Rep. 667, 22 Am. St. Rep. 693, and note page 699; Cravens v. Rodgers, 101 Mo. 253, 14 S. W. Rep. 106; Railway Co. v. Langlois, 9 Mont. 419, 24 Pac. Rep. 209, 18 Am. St. Rep. 745, note, 8 Lawy. Rep. Ann. 753, and note; Markham v. Brown, 8 N. H. 523; McConnell v. Pedigo (Ky.), 18 S. W. Rep. 15, 23 Am. & Eng. Enc. Law. 126, and cases cited in note 3, pp. 126, 127. The question here is, has a railroad company the right to designate the place abutting on the platform where the owners of competing omnibus lines shall stand their vehicles while awaiting the arrival and departure of trains, and where they shall receive and discharge passengers and baggage? It is settled that railroad companies have the right to make and enforce reasonable rules and regulations in regard to their stations and grounds, -as to who shall enter upon the same, and how they shall conduct themselves while there. 19 Am. & Eng. Enc. Law. 820, 23 Am. & Eng. Enc. Law, 124, 126. This includes the right to make reasonable rules and regulations to prevent quarrels between the owners of competing omnibus lines and their employees while upon the depot grounds. For this purpose a railroad company may, if it admits omnibuses and hacks to its grounds, designate the stand each shall occupy, and thus prevent quarrels for place, and other scenes of disorder. 23 Am. & Eng.

Enc. Law, 126, and cases cited in note 3. See, also, Cole v. Rowan, 88 Mich. 219, 50 N. W. Rep. 138. The arrangement offered by the railroad company gave appellees access to the depot grounds, and the privilege to receive and discharge passengers and baggage, and to stand their bus at the platform while awaiting the arrival and departure of trains. It may be that the position offered to appellees was not as favorable as the part left for appellants, for the reason that passengers alighting from the trains would pass the busses of appellants in going to appellees' bus, as all the busses would be backed against the same platform, and stand side by side. Be this as it may, the railroad company having the power to designate the place each should occupy, neither can complain that the best or most convenient location with reference to the depot or platform was given to the other. It is clear, therefore, that the finding and judgment should have been for appellants. It follows that the court erred in overruling appellants' motion for a new trial. The error, if any, in sustaining appellees' demurrer to the first and second paragraphs of answer, was harmless, for the reason that the same evidence could be and was given under the third paragraph of answer. Judgment reversed, with instructions to sustain appellants' motion for a new trial, and for further proceedings in accordance with this opinion.

NOTE.-Subject to the limitation that its regulation shall not be unreasonable, a railroad company has the right to make and enforce rules and regulations regarding its stations as to who shall enter upon the premises, and as to how those allowed to enter shall conduct themselves while there. Landrigan v. State, 31 Ark. 50; Commonwealth v. Power, 7 Metc. (Mass.) 596, 41 Am. Dec. 465; Dickerman v. St. Paul Union Depot Co., 44 Minn. 433. A regulation prohibiting all persons from entering station premises, except those having lawful business there, is not unreasonable, and may be enforced by the company if it is uniform in its operation, and not used to make unjust discrimination. Summitt v. State, 8 Lea (Tenn.), 413, 41 Am. Rep. 637; Fluker v. Georgia, etc. R. Co., 81 Ga. 461. Common instances of such regulations are seen in rules forbidding hackmen, hotel drummers or loiterers from entering the depot premises to solicit patronage or annoy passengers. Thus, in Landrigan v. State, 31 Ark. 50, it was held that the company had a right forcibly to eject from its station premises a hotel runner who came there to solicit patronage, in violation of a regulation of which he might be ignorant. To the same effect is Commonwealth v. Power, 7 Metc. (Mass.) 596; Harris v. Stevens, 31 Vt. 79. Discriminations are made sometimes in favor of certain hackmen. So far as such regulations have for their object the comfort and convenience of passengers, and the avoidance of the presence and clamor of competing hackmen, it would seem, both upon principle and authority, that they are valid. The difficulty arises on the contention that a regulation of this sort in the particular instance may constitute an unjust and unfair discrimination. Such a view was held by the Supreme Court of Missouri in the case of Cravens v. Rodgers, 101 Mo. 247. Also in McConnell v. Pedigo (Ky.), 18 S. W. Rep. 15. So also in Montana Union Railroad Co. v. Langois, 9 Mont. 419, 18 Am. St. Rep.

745, the company granted to a single hack owner, and to the exclusion of all others, the right to receive and discharge passengers at its station platform. It was held that such a grant could not be upheld; that the railroad company had no power to make such a regulation. To the same effect is Kalamazoo Hack, etc. Co. v. Sootsma, 84 Mich. 194, 22 Am. St. Rep. 699. This subject underwent a discussion in the recent Massachusetts case of Old Colony Railroad Co. v. Tripp, 147 Mass. 35, 9 Am. St. Rep. 661. Here the regulation was one which granted to a certain person the exclusive right of coming upon station grounds to solicit the patronage of incoming passengers with respect to carrying their baggage, etc. It was held that such a regulation was proper, and did not contravene the provision of the statute, which latter was considered to apply only to railroads as common carriers and their patrons. In that case, there was a dissent on the part of three of the judges. The majority opinion referred to Markham v. Brown, 8 N. H. 523, in which case it was held that an innkeeper had no right to exclude from his inn a stage driver who entered it to solicit guests to patronize his stage in opposition to a driver of a rival line who had been admitted for a like purpose, but distinguished such a case from one involving the right to enter a railroad station for purposes substantially similar. The majority of the judges also cited the cases of Barney v. Oyster Bay, etc. Steamboat O., 67 N. Y. 301; Harris v. Stevens, 31 Vt. 79; Jenks v. Coleman, 2 Sumn. (U. S.) 221. The dissenting judges cited with approval the cases of New England Express Co. v. Maine Central R. Co., 57 Me. 188. See, also, on this subject Griswold v. Webb, 16 R. I. 649; Cole v. Rowan, 88 Mich. 219; Smith v. New York, etc. R. Co. (Pa.), 24 Atl. Rep. 304, and the following English cases, Marriott v. London, etc. R. Co., 1 C. B. (N. S.) 499; Beadell v. Eastern Counties R. Co., 2 C. B. (N. S.) 509; Barkis v. Midland R. Co., 18 C. B. 46; In re Palmer R. Co., L. R. 6 C. P. 194; In re Parkinson, L. R. 6 C. P. 554.

JETSAM AND FLOTSAM.

MECHANICS' LIENS-PUBLIC PROPERTY. A bridge built on a county road under a contract with the county is held, in First National Bank v. Malheur County (Or.), 35 L. R. A. 141, to be exempt from liability to mechanics' liens because of the public character of the bridge. The annotation to the case reviews the other authorities as to mechanics' liens on public property.

It seems to be a well settled principle that, for reasons of public policy, public buildings and structures are not subject to mechanics' liens, although they are not expressly excepted in the statute conferring the lien. Thus it has been repeatedly held that courthouses, jails, fire department buildings, county bridges, public school houses, municipal water-works and buildings connected therewith, are not subject to such liens. Judge Dillon says on this subject: "It is clear that property owned by a municipal corporation and used for public purposes cannot be sold by virtue of an execution issued on a judgment rendered against the corporation. As one of the results of this general rule, there is no right to a mechanic's lien against such property. Thus, county bridges, school houses, court houses, and other public buildings which cannot be sold under an execution, cannot, without a plain statute to that effect, be sold on foreclosure of a mechanic's lien; it is only such property as can be

sold under judicial process that is subject to such lien. Laws creating liens in favor of mechanics are enacted with reference to that class of property which may be so sold. The remedy of the mechanic is to obtain judgment against the municipal corporation, and then to enforce its payment by mandamus." 2 Dillon, Municipal Corp. (4th ed.) 577. See further on the subject: Leonard v. City of Brooklyn, 71 N. Y. 498, 27 Am. Rep. 80 and note; Loving v. Small, 50 Iowa, 271, 32 Am. Rep. 136; Board of Comrs. v. O'Conner, 86 Ind. 531, 44 Am. Rep. 338; Peterson v. Reform School, 92 Pa. St. 229; Thomas v. University University, 71 Ill. 310; Atascosa County v. Angus, 83 Tex. 202, 29 Am. St. Rep. 637; Chapman, etc. Co. v Oconto Water Co., 89 Wis. 264, 46 Am. St. Rep. 830. Other cases are collected in note to Lyon v. McGuffey, 43 Am. Dec. 680, and note to LaCrosse, etc. R. Co. v. Vanderpool, 78 Am. Dec. 691, 696-697. In Phillips on Mechanics' Liens (sec. 179) it is said: "Property which is exempt from seizure and sale under an execution, upon grounds of public necessity, must for the same reason be equally exempt from the operation of the mechanics' lien law, unless it appears by the law itself that property of this description was meant to be included; and, to warrant this inference, something more must appear than the ordinary provisions that the claim is to be a lien against a particular class of property, enforceable as judgments rendered in other civil actions." See also 2 Jones on Liens, 1375.- Virginia Law Register.

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water to bathe, and that his body was, shortly after, found floating near by, it is for the jury to pass upon the cause of death.-WEHLE V. UNITED STATES MUT. ACC. ASSN. OF CITY OF NEW YORK, N. Y., 47 N. E. Rep. 35.

2. ACTION-Assignability-State and Federal Laws.— The question whether the beneficial interest in a chose in action created by an act of congress is assignable is controlled by the federal law, independent of the State laws. But the question whether the assignee may maintain an action thereon in his own name is a ques tion of procedure, depending on the State laws.-EDMUNDS V. ILLINOIS Cent. R. Co., U. S. C. C., N. D. (Iowa), 80 Fed. Rep. 78.

3. ADMINISTRATOR-Appointment of Administrator.Where a resident of another State dies intestate, an administrator may be appointed by the county court of any county in this State in which there shall be an estate to be administered, irrespective of the value of such estate.-MISSOURI PAC. R. Co. v. BRADLEY, Neb., 71 N. W. Rep. 283.

4. APPEAL-Sufficiency of Return.-In the absence of a return to this court from which the contrary is made to appear, it must be presumed, on appeal from a judg ment, that it was duly authorized and regularly en.tered. That the judgment was irregularly entered, or was unauthorized and unwarranted, cannot be made to appear by a return which does not purport to con. tain a copy of the judgment roll, or of all the papers and files which should be made a part of such roll.PABST BREWING CO. V. BUTCHART, Minn., 71 N. W. Rep. 273.

5. ATTACHMENT - Affidavit.-An affidavit in attach ment by two plaintiffs, concluding "that plaintiff will probably lose his debt," unless such attachment be is sued, is insufficient, in that it describes the parties plaintiff in the singular.-SARRAZIN V. HOTMAN, Tex., 40 S. W. Rep. 629.

6. ATTACHMENTS-Affidavit.-The affidavit for an attachment must state that the claim is just, and state in terms the sum affiant believes plaintiff ought to recover, though the action is on a note for a given sum alleged to be due and unpaid.-MOORE V. HARROD, Ky., 40 S. W. Rep. 675.

7. BAIL-Discharge of Surety.-When a person is under bonds to appear before the district court of a county in Kansas, he cannot be compelled to go from the jurisdiction of said court during the term at which he is recognized to appear, by a subpoena to appear and testify before the United States court.-HARDESTY V. STATE, Kan., 48 Pac. Rep. 998.

8. BANKS-Liability for Trust Deposit.-Where cer tain officers and stockholders of a corporation borrowed money intended by them to be deposited in a bank, and therein to be held as a trust fund for the creditors of the said corporation, but such intention, as well as the insolvent condition of the corporation, were unknown to the bank wherein the deposit was made, the payment in good faith of the fund upon the check of an officer of the corporation did not render the bank liable as a trustee to other creditors of the corporation, or to its receiver on their behalf, merely because the proceeds of said check, with the consent of the bank, were used to take up the note on the faith of which the loan had originally been made by the bank.-WYMAN V. NATIONAL BANK OF COMMERCE, Neb., 71 N. W. Rep. 277.

9. BILLS AND NOTES Burden of Proof - Consideration. In an action on a promissory note the plaintiff is not debarred from availing himself of the presumption that the note is based upon a good and valid consideration by introducing evidence to show an actual consideration, but the burden still rests upon the defendant to show want of consideration.-DURLAND V. DURLAND, N. Y., 47 N. E. Rep. 42.

10. BILLS AND NOTES Consideration.-A school board having abandoned the idea of building a library, because of its want of power to raise funds which