State v. Bland and refused to pay anything unless he was allowed to first examine them and see their condition; promising, however, if they were intact and in good order, to pay said duty and freight. The railroad refused to permit such an inspection, or to deliver the goods until the charges were paid, and thereupon Pearce instituted a replevin suit against the railroad and secured possession of the goods. He then ascertained that some of the goods were missing, and others damaged; his total loss being stated to be over $300. The answer of the railroad sets up these facts, and alleges that it was necessary to pay the duty in St. Paul in order to complete the transportation, and asks that it be subrogated to the right of the United States government in respect to said duty, and that it be decreed an equitable lien on the goods therefor. The reply claims that the goods were shipped in bond, and that St. Louis was the port of entry, and that the goods would never have been unpacked or damaged, and no duty would have been collected or demanded by the United States anywhere until the goods arrived in St. Louis, if it had not been for the wrongful act of the Canadian road, at Vancouver, in changing the destination from St. Louis to St. Paul, and that such conduct amounted to a conversion, and hence the Wabash (and no other) road was authorized to pay any such import duty, and that the freight was prepaid, and hence the charge of $1.24 was unlawful. The plaintiff obtained judgment in the circuit court. The railroad appealed to the St. Louis court of appeals, where two hearings were had. The first decision was unanimous in favor of the plaintiff. Upon a rehearing being granted, the majority again decided in favor of the plaintiff. The court refused to certify the case to this court, and the dissenting judge joined in that refusal. Then this writ of certiorari was issued. The plaintiff, Pearce, moves to quash the writ on the ground that no federal right has been denied the relator. Geo. S. Grover, for relator. Chas. E. Pearce and E. C. Kehr, for respondents. MARSHALL, J. (after stating the facts). The contention of the relator is that, under the statutes of the United States, it is subrogated to the rights of the United States, and has a lien upon the goods for the import duties that were paid by its connecting road in St. Paul. It is claimed that sections 3100, 3102, Rev. St. U. S. (2d Ed.) 1878, and 1 Supp. Rev. St. U. S. 1891, pp. 294, 540, give this right of subrogation. An examination of these statutes fails to support this contention. There is not a word in any of them, and there is nothing in the context, spirit, or purpose of any of them, that gives countenance or color to the contention. On the contrary, they provide a method whereby goods may be imported into the United States from foreign countries in bond, and transmitted to interior ports of entry, so that they will not State v. Bland have to be opened or examined, or the duties collected, at the first port of arrival, but only a record kept at such port of arrival of the fact, and the inspection and assessment and collection of the duty be made at the interior port of entry. The whole scheme conte plates that nothing such as happened in this case shall occur. Instead of covering or embracing any idea that the carrier shall pay the import duty at any point or at any time, the method provided by the statute is that, when the goods arrive at the port of entry specified in the manifest or clearance certificate, they shall be turned over to the governmental officers, and the consignee shall pay the duty to the government. This being the law, and this the state of facts presented by the record certified to this court, it follows that no statute of, or authority exercised under, the United States, is drawn in question in the case of Pearce against the Wabash Railroad Company; that the laws of the United States do not contemplate that the carrier shall pay the import duties at all, at any time or place, but that they shall be paid at the port of entry by the consignee; and that no right of subrogation to the right or lien of the United States is conferred, either expressly or impliedly, by the laws of the United States, upon a carrier, or upon any one else. It also follows that no such right was asserted by the defendant in the circuit court by its pleadings, but that the right of subrogation asserted in its answer is an alleged equitable right of subrogation, and not a legal or equitable right conferred by the statutes of the United States. The right of the government of the United States to inspect, to prevent frauds on the revenue, at any point in transit, is reserved by section 3102, Rev. St. U. S. 1878; but no such question is present in this case, as no such inspection for such a purpose was made in this case. The case resolves itself, then, into this: No federal protection has been invoked, and denied to the defendant by the lower courts. The case does not fall within the appellate jurisdiction of this court. The question involved is a simple question of the right of subrogation in equity. The St. Louis court of appeals has final appellate jurisdiction in such cases, where the amount involved does not confer jurisdiction upon this court, and such is not the case here. Is, this, then, a proper case for the exercise of the original and superintending jurisdiction of this court over all inferior courts of record, by the use of the writ of certiorari, under section 12, art. 6, Const. Mo.? If it is, then any litigant who loses in any ordinary action, involving no federal or constitutional right, would have a right to have the decision of any court reviewed by certiorari. The writ of certiorari never was intended to perform such functions. It reaches only questions of jurisdiction. It does not deal with the merits of controversies between the litigants. It acts upon judicial bodies and their proceedings, not upon private controversies. For these reasons, it is beyond dispute that Anderson v. Atchison, T. & S. F. Ry. Co the writ of certiorari was issued in this case upon a misconception of the questions presented to, and decided by, the St. Louis court of appeals, and hence that the motion to quash the writ should be sustained. be sustained. Under these conditions, it would be improper to consider the merits of the case of Pearce against the Wabash Railroad Company at all. The writ of certiorari is therefore quashed. All concur. ANDERSON v. ATCHISON, T. & S. F. Ry. Co. (Court of Appeals of Kansas City, Mo., April 7, 1902.) [67 S. W. Rep. 707.] Carriers of Freight-Limiting Liability for Loss by Delay*—Burden of Proof. When a carrier not capable of contracting against liability for negligence contracts against liability for loss by delay in a shipment of freight, the shipper, in an action for damages resulting from delay, has the burden of showing that the delay was caused by the carrier's negligence. Same-Delay-Sufficiency of Evidence to Raise Presumption of Negli gence. Evidence that it took 24 hours to transport cattle to a certain place, when the usual time was from 13 to 15 hours, and that the train was delayed at more than one place from 2 to 4 hours, is sufficient to raise a presumption of the carrier's negligence, in an action by the shipper for damages. Appeal from circuit court, Linn county; Jno. P. Butler, Judge. Action by H. Anderson against the Atchison, Topeka & Santa Fe Railway Company for damages in delay of shipment of stock. From a judgment for plaintiff, defendant appeals. Affirmed. Gardner Lathrop and Saml. W. Moore, for appellant. ELLISON, J. Plaintiff shipped over defendant's road three car loads of cattle from Marceline, Mo., to Chicago, Ill., for the market at that point. They were not delivered in time for the market of the day next after shipment, and the delay, which plaintiff charges was negligent, caused a loss to the plaintiff. No evidence was introduced by defendant. Plaintiff recovered judgment in the trial court. The shipment was under a special contract which exempted the defendant from liability on account of delay. But as the *See White v. Great Western R. Co., 2 C. B. N. S. 7, 26 L. J. C. P. 158; Webb v. Great Western R. Co., 26 W. R. 111; Manchester S. & L. R. Co. v. Brown, 8 App. Cas. 703, 53 L. J. Q. B. D. 124, 4 Ry. & C. T. Cas. XVIII; Dawson v. Chic. & Alton R. Co., 18 Am. & Eng. R. Cas. 521, 79 Mo. 296; Jennings v. Grand Trunk R. Co., 49 Am. & Eng. R. Cas. 98, 127 N. Y. 438, 28 N. E. Rep. 394, 40 N. Y. S. R. 318. See also, Gulf, C. & S. F. R. Co. v. Gatewood (Tex. Sup. Ct. sec. 1890), 14 S. W. Rep. 913. Frederick v. Louisville & N. R. Co defendant cannot make a binding contract which will exempt it from liability for its negligence, the question in this case is, on whom is the burden of proof of negligence, and, if on plaintiff, did he show it? The law is that if a carrier of freight contracts for an exemption to its ordinary liability, and it is shown that the damage charged against it was caused by one of the causes excepted in the contract, the plaintiff must then take the burden of showing that, notwithstanding the contract, the injurious thing happened by reason of the carrier's negligence; for in such case the contract, by force of public policy, must give way: Witting v. Railway Co., IOI Mo. 631, 14 S. W. 743, 10 L. R. A. 602, 20 Am. St. Rep. 636; Otis Co. v. Missouri Pac. Ry. Co., 112 Mo. 622, 20 S. W. 676. No specific act or acts of negligence were made to appear. That is to say, no cause for the delay was shown. But plaintiff did show the following: That he shipped the cattle at II o'clock a. m. on the 13th at Marceline, and that they arrived at II o'clock a. m. the next day; that from 13 to 15 hours was the usual time for transportation between the two points; that delays occurred at more than one point of from 2 to 4 hours; and that other trains going towards Chicago passed them while thus delayed. We regard this as sufficient to raise a presumption of negligence. The supreme court held in the cases cited supra that it was "enough for the plaintiff to disclose circumstances sufficient to raise a fair inference of negligence, and especially is this so" where the means of showing how the delay "occurred is with the defendant, and not the plaintiff." The cases of Leonard v. Railway Co., 54 Mo. App. 293, and Blanchard v. Railway Co., 60 Mo. App. 267, are in many respects quite applicable to this case, and are controlling authority against defendant's position, considered in connection with the evidence. The judgment should be affirmed. All concur. FREDERICK v. LOUISVILLE & N. R. Co. (Supreme Court of Alabama, April 24, 1902.) Refusal of Carrier to Deliver Goods*-Liability as Warehouseman.t Under a count seeking recovery against a railroad company as a *See generally, extensive note, 2 Am. & Eng. R. Cas., N. S., 719. See Walker v. Eikleberry, 13 Am. & Eng. R. Cas., N. S., 253, and note at end of case. Also, see Dixon v. Central of Georgia Ry. Co., 17 Am. & Eng. R. Cas., N. S., 380, and note at end of case. Frederick v. Louisville & N. R. Co voluntary bailee of goods which were destroyed before delivery to the consignee, the burden of proof was on the plaintiff to show the negligence averred. Appeal from circuit court, Bibb county; John Moore, Judge. Action by Louis Frederick against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed. This action was brought by the appellant against the appellee. The complaint contained two counts. In the first count the plaintiff claimed $100, for that upon a specified day the defendant received at Nashville, Tenn., six stoves, to be delivered at Blocton, Ala., and it was then averred in said count that the defendant undertook to deliver the stoves, but the same were destroyed at Blocton, Ala., while in the charge of the defendant as a common carrier. In the second count it was alleged that "the defendant had in its possession and under its control, for the use and benefit of the plaintiff, the following described property, to wit, six stoves, of the value of, to wit, one hundred dollars; that the defendant so negligently and carelessly conducted itself in the possession and control of said property that the same was destroyed by fire, to the plaintiff's loss as aforesaid; hence this suit. The defendant pleaded the general issue, and the cause was tried upon an agreed statement of facts, which were substantially as follows: The stoves were transported from Nashville, Tenn., to Blocton, Ala., and consigned to the plaintiff. Defendant notified plaintiff of the arrival of the stoves, and the plaintiff went immediately to the depot of the defendant in order to get the stove. On inspecting them he found that three were badly broken, and of no value. Thereupon plaintiff demanded the stoves that were not broken, and refused to take those that were injured. The defendant refused to deliver any of the stoves unless all of them were delivered. About two weeks thereafter the depot at Blocton, wherein the stoves were stored, was burned, and all of the stoves were destroyed. The cost price of the stoves was $89, and the market price at Blocton was $100. The bill of lading was introduced in evidence, and was such a one as is usually given by railroads for the transportation of freight. Upon the introduction of all the evidence the court rendered judgment for the defendant. From this judgment the plaintiff appeals, and assigns as error the rendering of judgment in favor of the defendant. J. M. McMaster, A. L. Arnold, and W. H. Logan, for appellant. J. M. Falkner, for appellee. DOWDELL, J. The case was tried by the court without the intervention of a jury, and a judgment was rendered in favor of the defendant. There are only two assignments of error, both of which relate to the judgment rendered. No |