has beert 'held that the bare denial of complainant's title is not any obstacle to' the court's proceeding in·equity. "The defendant must answer the bill; and, if he sets up a title adverse to the complainant, or disputes the complainant's title, he must discover his own title, or shoW' wherein the complainant's title is defective. If, when the titles are spread before the court upon the pleadings, the court can see that there is no valid legal objection to complainant's title. is no reason why the court shollid not proceed to order the partition... , Lucas v. King, 10 N. J. Eq. 280.
So, also, in Overton's Heirs v. Woolfolk, 6 Dana, 374, the court said.
picion attending it; would authorize the dismissal of thecomplafnants' bill, it would place tbis equitable jurisdiction, which has been' established by a long train of decisions, and is deemed of much public convenience, at the mercy of every profligate or unconscientious and render, the court the mere ministerial agent to carry into effect tbewishes of the parties, in cases where there we,re no' di!"tters of controversy bEltween Thereis to the fi).ing the demurJ;er tendered bytlle defendant Keeshan and other defendants to the portions of the second amended bill, ,and the specified in the exceptions to Keeshan's answer. The think it a proper precaution to file the demurrer. and have 'it passed upon in order to rights, and the court is disposed to .. '" But, as tllequestion!j presented are in uo wise different from those considered in this opinion, an 'entry will be made BustaiX¥ng the exceptions, and overr,uling the demurrer.
"If a bare denial of the title, where there was no reasonable doubt or sus-
.(Circuit Court, ."
et al. t1.
1.' BILL OJ' ExCBPTIONS-DELA,T IN PRBSENTING roR' SIGNATURE. A bill of must be presented to the judge not later than the term at which the judgllleptis rendered and the delay will not be excused on the ground that certain proceedings had taken place between the parties by reason of which they had hoped it would not be necessary to take the case up on review.
A paper. presented to the judge. nothing but the propositions of law argued at the hearing, on the margin Ofwhicll the judge, for the convenienc3 of the counsel, ntlted his rulings on the several propositions,-the paper not having been presented as a bill of exceptions, and the judge not having been,asked to sign it,cannot, after jlldgmenthas been rendered, be amended and signed as a bill of exceptions.
At Law. On motion to settle bill of exceptions. For opinion on the merits, see 31 Fed. 'Rep. 647. Oliver Stevens and James McKeen, for plaintiffs. ' Thomas HiUiBand John Hillis, for defendant Crossley. Bryant & Sweetser,' for trustees.
CARPENTER, J. This is an action at law, in which the writ was served in trustee process on certain insurance companies, for the purpose ofattaching a fund in their possession as the property of the defendant James E. Crossley. The claimants, Wilkinson Crossley and others, have intervened, and allege that the fund belongs to them by virtue of an as· signment made to them by James E. Crossley before the attachment was made. The question thus arising between the plaintiffs and the claimants was heard by me without a jury in the October term, 1886, to-wit, on the 3d and 4th'of February, 1887, and was on or about the 23d of February submitted to me on written arguments, and held for advisement. In the May term, 1887, to-wit, on the 29th of July, I delivered my opinion, to the effect that the claimants were entitled to the fund. 31 Fed. Rep. 647. Shortly afterwards the counsel for the plaintiffs presented to me a paper containing only a statement of the propositions of law which they had argued at the hearing, and.in the margin of each proposition, for the convenience of the counsel, I noted whether it was, in my opinion, allowed or refused, in effect, by the determination which I had already made. They also filed in the clerk's office a paper wherein they stated, in general terms, that they·exe,epted to the rulings which had been made in the case. Afterwards, during the October term, 1887, a decree was. settled and entered in accordance with the opinion. No further proceedings took place material to this inquiry until the 5th of December, 1889, on which day the plaintiffs' counsel presented to lIle, for my allowance, a bill of exceptions wherein were stated several of the propositions of law which were urged by them at the hearing, and which were not adopted by me in my decision, together with an absttact of such parts of.the evidence to which it is conceived these propositions of law should properly apply. I think the bill of exceptions ought not to be signed. Itis well settled that a bill of exceptions cannot be allowed unless it is presented to the judge not later than the term at which the judgment is rendered, "without an express order of the court during the term,' or consent of the parties, save under very extraordinary cir<Jumstances." Muller v. Ehlers, 91 U. S. 249. The question has since been fully discusl'led by Judge DYER in Sweet v. Perkins, 24 Fed. Rep. 777, and I came to the'same conclusion in Stave Co. v. Manufacturing Co., 32 Fed. Rep. 822. There are no extraordinary circumstandes in this case. The plaintiffs excuse their delay by saying that certain proceedings have taken place relating to the controversies between the parties by reason of which they have hoped that it would not be necessary to take this case up for review. Under these circumstances, it seems clear that their proper course was to present their bill of exceptions seasonably, and obtain an allowance, and then wait until they ehould be advised to sue out their writ of error. The plaintiffs urge that the paper which their counsel presented to me soon after the opinion was delivered should be considered as a bill of exceptions,and should' now be amended and signed. But that paper had in no respect the form of a bill of exceptions, being simply a list of propositions of law. Nor did it contain the substanceofa 'bill
1,10 ,statement of th.e no referenceto :eyidence. FurthermOJ;e,Jtwas me as a bill ofexcep#Qnll, and I 'lYasl1otaske<l t;o.sign it. ,evidently,as it was doubtleas. intepded to be, only, J' from which I might afterwards;vetifya bill of exceptions,as I should from my 9wn I therefore decline to sign th.e bill.. ..
LUCAS tl. RWHY()Nl)&
Oourt, D. Sooth OaroUna. December 9, 1889.)
RAIutOADOoHPANIBI-WALKING ON TlWlx-NBGLIGENOB.
In anlWtloJ;1 for personal injury, ltappea,red that pla1ntt1fwB$.walking on de. fendant'srailroad track, and B.'tepped off a few feet, whefi a·train passed, and he saw the ahadow of something,ll.ndwaa:felled. to the 'gronnd;: that;a severe wound was found on .his head, and a stick of,Wood, similar to the llticks used on the locomotive, was· found imbedded in the 'e"hhnear where he fell. .There was no other evidence that the wood was thrown JrOm the locomotive, or how it was thrown, or that it IItruck plaintiff. The speed oUhe train was about 60 an hour·. Held that, utllerewll.s nocontractl1ll.l relation between plaintifl a'l1d defendant, there was no presumption. of negligence against the latter, and'a Verdict Ilhould be di· recteHor the defendal/o'" ·. . . ..
orr and J. a.
Cra,tlJjord and G.
to Instruct the Juty .tq
for Defendant. plaintiff'. " .
The plaintiff brings nction the defendant for negligenge. He waswalking.@ thernilroad trackfrom: Batesburg to Leesville,. in th;is state.. The tra:ck had been used for over 20 years asa pathway. by the inhabitants of thel,le two about two miles apart. While so walking he heard a coming train, and stepped about breast off the track,placing himself eight or nine Uletfroql .the track.:. ·Just as the engine high, and; tbetrain passed him, he saw the shadow and of so.mfthiIlg il),; the air, and. waS :felled to .the grO\1nd.,. lie lost consciousness forll-. tim,e. Recovering:, he pursued his. way, to Leesville, and was .by, a physician. wound was on the side of his head,. mada ,by some The· acQident was about to the of the accideut, noon-day. .In :the afternoon he.. some 600 yare's frqm Leesville..There he found a piece of wood, simi.. . lar to that fQr,firing up loconlQtiyes on, this and supposed that it was the piece which struck him.. , It was imbedded. in the bank where he was standing. . l'hewitnesses for plllintiff say that the train was rUnning somessy60 miles an The track at this pIneais sm,ooth .and. !ltrai,ght, within the corporate limits of Lees-vill(l, ill the ol,ltskirts, of the toW,D. ,The,gist of this action is negligence. It proved. There being no contJ:actualrelation be-