Missouri Statutes, be, and the same is hereby amended by adding thereto words as follows, to wit: "But any mutual company, upon a majority vote of its members present at an annual meeting, or at any special meeting called for that purpose, after one week's notice by advertisement in one or more newspapers printed and published in the county, where the chief office of said company is located, may charge and receive, for the mutual benefit of its policy-holders, cash in payment of premiums on such of its policies as shall be by a majority vote at any such meeting determined upon;" so that section 2 shall read as follows, to wit: Section 2. Corporations may be formed for the purpose of doing the business mentioned in the first of the three classes or divisions named in the first section of this act, either on the stock or mutual plan, and for the purpose of doing the business mentioned in the second and third classes or divisions upon the stock plan; and the names of every corporation so formed shall indicate the plan upon which it is formed, by having the words "stock" or "mutual," as the case may be, affixed to the name which it assumes; and it shall be unlawful for any corporation so formed, to do business on any other plan than that upon which it is organized, or in any manner to use its name, or to make publication thereof, unless the words herein provided be affixed thereto, in plain letters, of at least half the size of the letters in which the balance of the name is printed; and no such corporation shall adopt the name of any existing company or association transacting the same kind of business, or a name so similar as to be calculated to mislead the public; and mutual companies shall not issue policies known as "stock policles," or do business as joint stock companies, or upon the joint stock plan; but any mutual company, upon a majority vote of its members present at an annual meeting, or at any special meeting called for that purpose, after one week's notice by advertisement in one or more newspapers printed and published in the county where the chief office of said company is located, may charge and receive, for the mutual benefit of all its policy-holders, cash in payment of premiums on such of its policies as shall be by a majority vote at any such meeting determined upon.

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SEC. 2. That section 17 of said act be, and the same is hereby amended, by inserting after the words ery person who shall insure in such mutual company the following words, to wit: "Whose premium is payable by note;" so that said section 17 so amended shall read as follows, to wit: Section 17. Every person who shall insure in such mutual company, whose premium is payable by note, shall, before he receives his policy, deposit with the company a note for such sum or sums of money as may be agreed upon for the premium, a part not less than ten per cent. of which shall be immediately paid in cash, before the company shall be liable for any loss; and the remainder of said note shall be made payable at any time, and in part or the whole,as the directors of said company may demand,upon an assessment to be made by them, whenever they shall deem the same necessary for the payment of losses, expenses and other liabilities of said company. Said note or such part thereof as shall remain unpaid at the expiration or termination of the policy, shall be given up to the maker of the same, Provided, all assessments upon such note, and all liabilities of said maker to the company shall have been paid. All buildings and other property, real and personal, insured by and with such company, together with all rights, title and interest of the insured to the lands on which such buildings are situated, shall be pledged to such company, and the company shall have a lien thereon until the aforesaid note is fully paid; Provided, that the maker of said note shall assent to such lien, in writing, upon the face of the same, and the note shall be recorded in the

office of the recorder of the county where such property is situated.

Approved March 15th, 1877.

THIRTIETH GENERAL ASSEMBLY OF ILLINOIS. AN ACT to repeal an act entitled "An act to establish a Recorder's Court in the City of El Paso," approved March 6th, 1869, and to repeal an act entitled "An act supplemental to an act entitled 'An act to establish a Recorder's Court in the City of El Paso,' approved March 6th, 1869, and to provide for the turning over to the Circuit Court of Woodford County of the records, books, dockets, files and papers of the said Recorder's Court of the City of El Paso, and to authorize and empower the Circuit Court of Woodford County, to make all orders necessary to carry into effect all judgments, orders, and decrees of said Recorder's Court, and to authorize the Clerk of the Circuit Court of Woodford County to issue all necessary process to carry into effect all unsatisfied judgments, and decress of said Recorder's Court.

SEC. 1. Be it enacted by the people of the State of Illinois represented in the General Assembly, That an act entitled "An Act to establish a Recorder's Court in the City of El Paso," approved March 6th, 1869, and an act supplemental thereto, entitled "An Act supplemental to an act entitled 'An Act to establish a Recorder's Court in the City of El Paso,' approved March 6th, 1869," be and the same are each hereby repealed. SEC. 2. All records, dockets, files, books and papers belonging or appertaining to said Recorder's Court of the City of El Paso, shall be by the clerk thereof transferred and turned over to the Clerk of the Circuit Court of Woodford County, and the Clerk of said Circuit Court of Woodford County is hereby authorized and empowered to demand and receive of the clerk of said Recorder's Court of the City of El Paso, all such records, dockets, files, books and papers, and the same shall be kept by said Circuit Clerk as the records, dockets, files, books and papers in his office, and said Clerk shall issue all process necessary to carry into effect all unsatisfied judgments and decrees of said Recorder's Court; and the Circuit Court of Woodford County is hereby empowered and authorized to make all orders necessary to carry into effect all judg ments, orders and decrees of said Recorder's Court in the same manner and with the same power and effect as if said judgments, orders, and decrees had been originally entered or rendered in said Circuit Court.

SEC. 3. An emergency is hereby declared to exist, and therefore this act shall take effect and be in force from and after its passage.

Approved March 26th, 1877.

AN ACT to amend an act entitled "An Act to provide for the Incorporation of Cities and Villages," approved April 10, 1872, in force July 1, 1872. SEC. 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, That section 2 of article 4 of an act of the General Assembly of the State of Illinois, entitled "An Act to provide for the incorporation of cities and villages," approved April 10, 1872, in force July 1, 1872, be and the same is hereby amended so that it shall read as follows: SEC. 2. At the general election held in 1877, and biennially thereafter, a mayor, a city clerk, a city attor ney, and a city treasurer shall be elected in each city: Provided, That no person shall be elected to the office of city treasurer for two terms in succession."

SEC. 2. Whereas, an emergency exists, which makes it necessary that this act shall take effect on or before the third Tuesday of April, A. D. 1877, therefore this act shall be in force from and after its passage. Approved March 26th, 1877.

AN ACT to amend Section 1 of Article 4 of an act

entitled "An Act to provide for the Incorporation of Cities and Villages," approved April 10th, 1872.

SEC. 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, That section 1 of article 4 of an act entitled "An act to provide for the incorporation of cities and villages," approved April 10th, 1872, be and the same is hereby amended, so that hereafter it shall read as follows: SEC. 1. A general election for city officers shall be held on the third Tuesday of April of each year: Provided, that in cities which include wholly within their corporate limits a town or towns, such elections shall be held on the first Tuesday of April.

SEC. 2. Whereas an emergency exists by means of the happening of town elections in April, 1877, this act shall take effect and be in force from and after its passage.

Approved March 9th, 1877.

NOTES OF RECENT DECISIONS.

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NEGLIGENCE-KEEPING FEROCIOUS DOG-ACTION FOR DAMAGES EVIDENCE.-Mann v. Wieand. preme Court of Pennsylvania, 34 Leg. Int. 77. Opinion by MERCUR, J. The defendant was charged with wrongfully and negligently keeping dogs of a ferocious and mischievous nature. It was averred that he knew they were used and accustomed to attack, worry, and frighten horses as they were driven on the public highway, near his dwelling-house, and by the dogs' repetition of such an act, the injury complained of was caused. To fasten the liability on him, it was necessary to establish the vicious character of the dogs, and his previous knowledge of that character. To prove the former, the defendant in error gave evidence of the conduct of the dogs on two occasions. At one time, as a team was passing along on the public highway, the dogs, without leaving the enclosure of their master, jumped against the bars of the fence at the roadside with such force and violence, and rattled them to such an extent, as to frighten the horses, thereby causing them to break the double-tree, and run for several rods. The other act was of a more vicious character. As a team was passing the premises of the plaintiff in error, his dogs ran out into the road, one of them barked and jumped ahead of the horse so as to stop it. The other raised himself up, put his paws on the wagon, barked and growled, and seized the shawl of a small girl who sat on the back seat. On its being jerked loose from him, he got down, but both dogs, growling, followed the team some three or four hundred rods. There was evidence that the plaintiff in error had notice, before the injury in this case, of the conduct of the dogs on both those occasions. Held, that these facts were sufficient upon which to find the dogs to be vicious and accustomed to attack and frighten horses. In Smith v. Pelah, 2 Strange, 1264, it was said by Lee, C. J.: "If a dog has once bit a man, and the owner, having notice thereof, keeps the dog and lets him go about or lie at his door, an action will lie against him, at the suit of a person who is bit, though it happened by such persons treading on the dog's toes; for it was owing to his not hanging the dog on the first notice, and the safety of the king's subjects ought not afterwards to be endangered." So in Arnold v. Norton, 25 Conn. 92, it was held that full and satisfactory proof of a single instance in which the dog had previously bitten a human being, and of the owner's knowledge thereof, was sufficient; but that the force of such testimony would depend much on the surrounding circumstances. In Kittridge v. Elliott, 16 N. H. 77,

evidence of notice of one attack by a dog was held sufficient to charge the owner with all its subsequent acts. In Loomis v. Terry, 17 Wend. 496, one instance seems to have been considered sufficient. One attempt of a bull to gore was held sufficient in Cockerham v. Nixon, 11 Iredell, 269. One instance may be such unmistakable evidence of a vicious propensity as to make the owner of the dog, with notice, liable for any subsequent act of a similar character. The gist of the action for the subsequent misconduct of the dog, is for keeping it after knowledge of its vicious propensity; May v. Burdett, 9 Q. B. 101; Wheeler v. Grant, 23 Barb. 324. It thereupon becomes the duty of the owner to so keep his dog as to guard against a repetition of similar misconduct. He is bound to secure it at all events, and is liable to parties afterwards injured, if the mode he has adopted to secure it proves insufficient. Wood on Nuisances, § 763; Jones v. Perry, 2 Esp. 482; Mason v. Kirling, 12 Mod. 332. The principle on which this rule rests was held in Munn v. Reed, 4 Allen, 431, to be that a ferocious animal, liable to do injury to men or property, is a nuisance, and that keeping it after notice of such liability is so wrongful, that the owner is chargeable for any neglect to keep it with such care that it can not do any damage to any person who, without any essential fault, is injured thereby. The same rule applies with reference to injuries from vicious dogs as in reference to other nuisances. Wood on Nuisances, § 766; Fish v. Skut, 21 Barb. 333; Hewes v. McNamara, 106 Mass. 281; Marsh v. Jones, 21 Vt. 378. Hence the keeping of a vicious dog near a public highway, endangering the safety of persons passing thereon, is a nuisance operating as an obstruction, and renders the persons, knowingly keeping it there, liable to indictment, and also liable to an action in favor of any person injured thereby. Granger v. Findley, 7 Irish C. L. Rep. 417; Wood on Nuisances, § 768. It is said in § 803, Ib., knowledge of the owner, that his dog had attacked animals of one class, is not evidence from which knowledge may be inferred that it would attack animals of another class, nor that it would attack mankind. But in Shearman and Redfield on Negligence, the rule is declared to be: "It is not necessary that the acts of aggression brought to the notice of the owner should be precisely similar to that on which the action against him is founded, but they should indicate a disposition to commit injuries substantially like those which form the basis of the cause of action." This is believed to be the true rule in its application to domestic animals. The defendant having proved the fact that the dogs had worried and frightened passing horses, from which a propensity to do so may be inferred, evidence is not admissible to prove their good behavior at other times. This very question arose in Buckley v. Leonard, 4 Denio, 500, where the owner of a dog which had bitten other persons had notice of the fact, and had suffered him to be at large, when he bit plaintiff. It was held to be no answer to the action that the dog was generally inoffensive.

RINGING CHURCH BELLS IN CITY-NUISANCE-INJUNCTION.-Harrison et al. v. St. Mark's Church. Common Pleas, of Philadelphia, 3 Weekly Notes, 384. Opinion by HARE, P. J. 1. Noise caused by the ringing of church bells, if sufficient to annoy and disturb residents of the neighborhood in their homes and occupations, is a nuisance, and will be enjoined. 2. As the atmosphere can not rightfully be infected with noxious smells or exhalations, so it should not be caused to vibrate in a way that will wound the sense of hearing. In this case a bill was filed by the owners and occupants of dwelling houses in the vicinity of the defendant church, to restrain the ringing of its bells.

The bill alleged that the defendants had, in the tower of the church, four large bells, and had caused them to be rung "regularly before each and every service, on each and every day of the week, the strokes averaging between seventy-five and ninety-four a minute, and prolonged continuously for a period of between ten minutes and half an hour at each of such times-that is to say, on Sundays, before early service, at 7 o'clock A. M., for fifteen minutes; and before each of the three other Sunday services, at 10:30 A. M., 4 and 7:30 P. M., for half an hour; on week-days, before daily services, at 9 A. M. and 5 P. M., for between ten and fifteen minutes; and on festivals and saints'-days to announce still additional services; that, in response to a special appeal by a physician, in behalf of an ill patient, the early Sunday morning ringing had been temporarily discontinued; that the noise of such ringing was harsh, loud, high, sharp, clanging, discordant, producing a nuisance which disturbed rest and sleep, distracted the mind from any serious employment, interfered with conversation in the immediate neighborhood, lessened or destroyed social and domestic intercourse, peace and happiness; and, in particular, was detrimental to the health and comfort of invalids, children, and persons whose nervous systems are delicately organized; that the effect was not limited to the periods of actual ringing, but the anticipation of its beginning produced a nervousness and excitement which to all is painful, and to some intolerable; and, that such nuisance affected injuriously the value of complainants' property." The bill further averred that, prior to the institution of the suit, frequent appeals had been made to the vestry to discontinue or reduce the ringing, but that, in response, the vestry had passed a resolution in which they "utterly denied the right of the residents in the vicinity to regulate in any way the manner or the time of ringing the bells "—stating, however, that they would always be ready, through the Rector," to hear and consider any special appeal that may be made for stopping the ringing of the bells in any special case of illness." To the bill the defendants filed an answer, setting up that the "chiming complained of is neither a public nor private nuisance, being in truth and fact musical, mellow, soft, wellpitched, sweet, and harmonious, and of such an agreeable character that it has grown to constitute one of the chief attractions of the neighborhood;" that the bells were of the best material and tone; that bell-ringing "is part of the ordinary and usual sounds of city life, the chiming complained of being far less calculated to disturb ordinary citizens than the customary bellringing in factories, schools, and some other churches, or the noises of cars, wagons, steam-whistles, and other sounds incident to a city;" and that the "chiming of bells is in accordance with the ancient modes of announcing divine worship in the christian churches throughout the civilized world, for more than 1,200 years, and so practiced in this city for more than a century." Several hundred affidavits and counteraffidavits were produced in support of the allegations of the bill and answer. They covered a wide field, and were classified as clerical and theological, medical and physiological, scientific, expert, relating to the value of real estate, the effect of the bells upon the numerous affiants, invalids, etc., etc. On all these points the testimony was conflicting. Different members of the same household gave affidavits of an opposite tenor, and several persons who originally gave affidavits on one side subsequently gave counter-affidavits on the other. On behalf of the complainants, there was positive testimony, however, that the bell-ringing had caused loss of sleep aud annoyance to some of the complainants, and had produced bad effects on certain invalids. On the other hand very many witnesses for the

defendant testified that, so far from the bells being a nuisance, they greatly enjoyed the sweet sounds, and would miss them very much if they were stopped. The questions were argued before the court at great length, the complainants relying mainly on the cases of Martin v. Nutkin, 2 P. Wms. 266, and Soltau v. DeHeld, ? Simons, N. R. 133; S. C., 9 Eng. Law & Eq. Rep. 104. (A. D. 1851). Upon the first branch of the case, as to the annoyance and suffering caused to the neighbors, the court decided, that the weight of testimony was in favor of the complainants. The next inquiry was, whether, regarding the defendants' acts as prejudicial, they were done in pursuance of a right which could not be questioned. Upon this point, the court said: "The rule, sic utere tuo ut alienum non lædas, is not of universal application, and it has been said, 'that there are many cases in which a man may lawfully use his own property so as to cause damage to his neighbor, if it be not damnum injuriosum.' Acton v. Blundell, 12 M. & W. 324, 341. Where no contract, custom, or statutory rule prohibits, one may dig a trench on his own land, although the effect is to render the adjacent land incapable of sustaining a wall or house which has been built on it; but it also seems that ‘if my land adjoins that of another, and I have not, by building, increased the weight upon my soil, and my neighbor digs in his soil, so as to occasion mine to fall in, he may be liable to an action.' Wyatt v. Harrison, 3 B. & Ad. 71; Humphries v. Brogden, 15 Q. B. 739, 744; Harris v. Ryding, 5 M. & W. 60; Wakefield v. Buccleuch, 4 Eq. Cases L. R. 613. However this may be, and whether damage occasioned by the exercise of an absolute or exclusive right be, or be not, a cause of action, it is clear that rights which others share should be exercised with a due regard for their interest. A man may do ordinarily what he will with his ground, but he has no such dominion over the streams that pass through, or the air that floats over it. The air and water are so far common property; that no one can be entitled to do that which will render them a source of injury, or unfit for the general use. As the atmosphere can not rightfully be infected with noxious smells or exhalations, so it should not be caused to vibrate in a way that will wound the not less delicate sense of hearing. Light may be shut out, and odors measurably excluded, but sound is all pervading. What, then, it may be asked, is bell-ringing forbidden? The answer is, certainly not, unless the circumstances require it. It does not, as I suppose, enter into the imagination of any man, and certainly can never be the purpose of a court, to suppress the chimes which, properly attuned and regulated, are a melodious and grateful form of sacred music. But, while bell-ringing may be a fruitful source of good, it may also be practiced in a way to produce injurious consequences." An injunction was thereupon granted, "restraining the defendants from ringing the bells of St. Mark's Church, or otherwise using the same so as to cause nuisance or annoyance, by sound or noise, to the complainants, or any of them, within their respective houses."

CONVERSION OF PROPERTY BY AGENT-WHEN LIABLE IN TROVER.-Laverty v. Snethan. New York Court of Appeals. 11 N. Y. Daily Register, 529. Opinion by CHURCH, C. J. If the agent parts with the property in a way or for a purpose not authorized, he is liable for a conversion; but if he parts with it in accordance with his authority, although at a less price, or if he misapplies the avails, or takes inadequate for sufficient security, he is not liable for a conversion of the prop erty, but only in an action on the case for misconduct. The defendant received a promissory note from the plaintiff, made by a third person and indorsed by the plaintiff, and gave a receipt therefor, stating that it was

received for negotiation, and the note to be returned the next day, or the avails thereof. The plaintiff testified in substance, that he told the defendant not to let the note go out of his reach without receiving the money. The defendant, after negotiating with one Foote about buying the note, delivered the note to him under the promise that he would get it discounted and return the money to defendant, and he took away the note for that purpose. Foote did procure the note to be discounted, but appropriated the avails to his own use. Held, that the act of the defendant in delivering the note and allowing Foote to take it away, was a conversion in law, and the plaintiff was entitled to recover. The question, as to when an agent is liable in trover for conversion, is sometimes difficult. The more usual liability of an agent to the principal is in an action of assumpsit, or, what was formerly termed an action on the case for neglect or misconduct; but there are cases when trover is the proper remedy. Conversion is defined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights. A constructive conversion takes place, when a person does such acts in reference to the goods of another as amount in law to an appropriation of the property to himself. Every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of the authority conferred, in case a limited authority has been given, with intent so to apply and dispose of it as to alter its condition or interfere with the owner's dominion, is a conversion. Bouv. Law Dict., title Conversion. Savage, C. J., in Spencer v. Blackman, 9 Wend. 167, defines it concisely as follows: "A conversion seems to consist in any tortious act by which the defendant deprives the plaintiff of his goods." In this case, the plaintiff placed the note in the hands of the defendant for a special purpose not only, but with restricted authority (as we must assume from the verdict of the jury) not to part with the possession of the note without receiving the money. The delivery to Foote was unauthorized and wrongful, because contrary to the express directions of the owner. plaintiff was entitled to the absolute dominion over this property as owner. He had the right to part with so much of that dominion as he pleased. He did part with so much of it as would justify the defendant in delivering it for the money in hand, but not otherwise. The act of permitting the note to go out of his possession and beyond his reach was an act which he had no legal right to do. It was an unlawful interference with the plaintiff's property, which resulted in loss; and that interference and disposition constituted, within the general principle referred to, a conversion, and the authorities sustain this conclusion by a decided weight of adjudication. A leading case is Syeds v. Hay, 4 T. R. 260, where it was held that trover would lie against the master of a vessel who had landed goods of the plaintiff contrary to plaintiff's orders, though the plaintiff might have had them by sending for them and paying the wharfage. Buller, J., said: "If one man who is intrusted with the goods of another put them into the hands of a third person contrary to orders, it is a conversion." This case has been repeatedly cited by the courts of this state as good law, and has never, to my knowledge, been disapproved, although it has been distinguished from another class of cases, upon which the defendant relies, and which will be hereafter noticed. In Spencer v. Blackman, 9 Wend. 167, a watch was delivered to the defendant, to have its value appraised by a watchmaker. He put it into the possession of the watchmaker, when it was levied upon by virtue of an execution not against the owner, and it was held to be a conversion. Savage, C. J., said: "The watch was

The

intrusted to him for a special purpose-to ascertain its value. He had no orders or leave to deliver it to Johnson, the watchmaker, nor any other person." So, when one hires a horse to go an agreed distance, and goes beyond that distance, he is liable in trover for a conversion. Wheelock v. Wheelwright, 5 Mass. 103. So, when a factor in Buffalo was directed to sell wheat at a specified price, on a particular day, or ship it to New York, and he did not sell or ship it that day, but sold it the next day at the price named; held, that in legal effect it was a conversion. Scott v. Rogers, 31 N. Y. 676; see, also, Addison on Torts, 310, and cases there cited. The cases most strongly relied upon by the learned counsel for the appellant, are Dufresne v. Hutchinson, 3 Taunt. 117, and Sargeant v. Blunt, 16 J. R. 73, holding that a broker or agent is not liable in trover for selling property at a price below instructions. The distinction in the two classes of cases, I apprehend, is that in the latter the broker or agent did nothing with the property but what he was authorized to do. He had a right to sell and deliver the property. He disobeyed instructions as to price only, and was liable for misconduct, but not for conversion of the property; a distinction which, in a practical sense, may seem technical; but it is founded, probably, upon the distinction between an authorized interference with the property itself and the avails or terms of sale. At all events, the distinction is fully recognized and settled by authority. In the last case, Spencer, J., distinguished it from Syeds v. Hay, supra. He said: "In the case of Syeds v. Hay, 4 Term R. 260, the captain disobeyed his orders in delivering the goods. He had no right to touch them for the purpose of delivering them on that wharf." The defendant had a right to sell the note, and if he had sold it at a less price than that stipulated, he would not have been liable in this action; but he had no right to deliver the note to Foote to take away, any more than he had to pay his own debt with it. Morally there might be a difference; but in law, both acts would be a conversion, each consisting in exercising an unauthorized dominion over the plaintiff's property. Palmer v. Jarmain, 2 M. & W. 282, is plainly distinguishable. There the agent was authorized to get the note discounted, which he did, and appropriated the avails. Parke, B., said: "The defendant did nothing with the bill which he was not authorized to do." So in Cairns v. Bleecker, 12 T. R. 300, where an agent was authorized to deliver goods on receiving sufficient security, and delivered the goods on inadequate security, it was held that trover would not lie, for the reason that the question of the sufficiency of the securioy was a matter of judgment. In McMorris v. Simpson, 21 Wend. 610, Bronson, J., lays down the general rule that the action of trover "may be maintained wherever the agent has wrongfully converted the property of his principal to his own use, and the act of conversion may be made out by showing either a demand and refusal, or that the agent has, without necessity, sold or otherwise disposed of the property contrary to his instructions. When an agent wrongfully refuses to surrender the goods of his principal, or wholly departs from his authority in disposing of them, he makes the property his own, and may be treated as a tort-feasor."

IN AN English Assize Court, recently, the judge sentenced a man to a month's imprisonment for stealing some hay, valued at a few dollars. After the prisoner had been removed, a juryman remarked: "That's rather stiff, my lord," and, as all the jury agreed in this opinion, the judge asked what sentence they would suggest. "Cut it in halves, my lord," said a juryman. "Very well, gentlemen," said the judge," it was your verdict and it shall be your sentence." The prisoner was accordingly brought back into court, and the judge said to him: "The jury think that a month is too stiff; take fourteen days."

MECHANIC'S LIEN-INTEREST IN LAND TO WHICH LINE ATTACHES.-Furnishing materials for the erection of a building, gives to the material-man a lien upon the building for the value of the materials. Such lien extends to whatever interest the party erecting the building may have in the land, whether it be legal or equitable, and in answer to a suit to enforce a mechanic's lien in such case, defendant will not be heard to deny his title, as it is an immaterial issue. [Citing Wag. Stat. p. 907, § 1; Williams v. Webb, 2 Disney, (Cin.) 430; Falconer v. Frazier, 7 Sm. & Marsh. 243]. Nothing can be affected by the judgment, except the interest of parties to the record. If any of these parties have no interest in the land, the judgment so far confers no lien. Judgment affirmed. Opinion by BAKEWELL, J. -Fleitz v. Vickey.

PRACTICE-APPEALS FROM JUSTICES' COURTS-AMENDMENTS-SERVICE IN WRONG NAME-APPEARANCE FOR PURPOSE OF APPEAL-NOTICE OF AMENDMENT.-A judg ment by default will not be set aside because the attorney of the party in default was negligent in his business, and neglected the case. It is not error for the Circuit Court to permit a correction of the name of defendant, appellant from the judgment of a justice of the peace, in the account, so as to make it correspond with the name signed to the appeal bond. Such correction or amendment of the account can be made, without the notice to the opposite party required by § 29, chap. 165 of the General Statutes, when pleadings are amended. Where the return of the constable shows that defendant was served by a wrong name, and subsequently approved for the purpose of appeal, and gave his right name, judgment was properly entered against him in the Circuit Court by the name he calls himself. The plaintiff may be allowed to withdraw a copy of the bond sued on, and file the original. Judgment affirmed. Opinion by BAKEWELL, J.-Murphy v. Lem.

CONSTRUCTION OF CONTRACTS-BILLS OF LADING-INSTRUCTIONS-BURDEN OF PROOF-CHANGE OF OWNERSHIP OF GOODS CONSIGNED-PROPER PARTIES TO ACTION. -Where bills of lading show an undertaking by a common carrier to convey freight to N, there to be delivered to Bor order, and in the tabular statement of "Marks" by which the freight is to be identified, the name of B is followed by A, as his address, the import of such bills of lading would be a contract to transport the freight to N and not to A. Where one of the counts of a petition sets up a contract to transport freight to a certain destination, and that there was shipment under such contract, and a failure to deliver the freight, and there was evidence tending to prove such allegations, it was error in the Circuit Court to refuse an instruction for plaintiff, that if the jury believed the facts as stated, the burden of proof was on defendant to show that the freight was delivered at its agreed destination; and if defendant failed to prove such delivery, plaintiff was entitled to recover the value of the freight as shown by the evidence. When a consignor sells the goods shipped to his consignee,this would bar a recovery by the consignor; but not where he merely offered to sell, which offer was rejected by consignee, who also refused to accept drafts drawn against the consignment. Judgment reversed Opinion by LEWIS, C. J.-Wheeler v. St. L. & S. E. R. R. Co LIBEL-PUBLICATION OF COURT PROCEEDINGS PRIVILEGED-PUBLISHING CONTENTS OF PAPERS FILED-ACTIONABLE WORDS.-Where a court or public magistrate is sitting publicly, a fair account of the whole proceedings, uncolored by defamatory comment or insinuation, is a privileged communication, whether the proceedings be ex parte or otherwise. The reason of the rule is the importance of giving publicity to judicial proceedings, which is sup. posed to overbalance the inconvenience to individuals. 1 Walter, [Citing, Curry v. Esp. 456; Davison Duncan 7 E. & B. 231; Ryalls v. Leader, Law Rep. 1 Ex. 299; Lewis v. Levy, E. B. & E. 537; Pinero v. Goodlake, 15 L. J, (N. S.) 676; Mason v. Walter, 4 Q. B. Law Rep. 93.] The privilege is not extended to the publi

V.

NEGLIGENCE-DEFECT IN RAILWAY TRACK.-Gibson v. Pac. R. R. Co., 46 Mo. 167; Devitt v. Mo. P. R. R., 50 Mo. 305; Cummings v. Collins, 61 Mo. 522, cited and approved by the court. In an action by a fireman against the railroad company for injuries received by overturning the engine, (which accident was caused by a defect in the track), there is no presumption of law or of fact that the plaintiff knew the unsafe condition of the track, and waived the same by continuing in the service of the company, although he had passed over it twice daily for four months. It was not a fireman's business to inspect the track, and instructions on this point framed on the opinion of the court in Gibson v. P. R. R., are held to be a correct statement of the law. Opinion by NAPTON, J.-Dale v. St. Louis, K. C. & N. R. R. INSOLVENCY OF CORPORATION-LIABILITY OF STOCKHOLDERS.-Admitted insolvency of a corporation is such a dissolution as will authorize a suit against the stockholders under the statute. 52 Mo. Rep. 587. As to the liability of a stockholder, sec. 20, Chap. 62, p. 330, the rule laid down by this court (Perry et al. v. Turner et al., 55 Mo. 424), is affirmed. In an action against a stockholder, an answer that another creditor had sued the stockholder, and obtained judgment, execution and payment to the full amount of the liability of the stockholder, is a good plea in bar, although the suit in which the judgment was rendered was begun after that in which the answer was made. There is nothing in our law which gives any lien or priority to the creditor who first sues, and proceedings against a stockholder rest on the same ground with all other actions in which no special lien is given by statute. The first Judgment gives the prior lien on real estate, and the first levy gives it on personal property. Opinion by NAPTON, J. -State Savings Association v. Kellogg.

EJECTMENT-ESTOPPEL IN PAIS-STATUTE OF FRAUDS. -Where a disputed or uncertain boundary line between contiguous proprietors has been conclusively settled by parol agreement, ejectment may be maintained for all the land included within the calls of the deed as located and determined by the agreement and conduct of the parties fixing the boundaries. Spears v. Walker, 1 Head, (Tenn.) 166; Tarrant v. Terry, 1 Bay, (S. C.) 239. To such cases the statute of frauds does not apply, because in them there has been no sale of land to either party; no consideration has passed from one to the other, nor is there any contract for the sale of land from one to the other. Taylor v. Zepp, 14 Mo. 482; Blair v. Smith, 16 Mo. 273. Acquiescence in the boundary lines so agreed upon is evidence to go to the jury to show an express agreement as to the lines, and if con tinued for a great number of years, is conclusive evidence. Jackson v. McConnell, 19 Wend. 176; Taylor v. Zepp, and Blair v. Smith, supra. And the right to maintain ejectment in this class of cases rests upon the ground that the acts of the parties constitute an estoppel in pais. Taylor v. Zepp,