in common, or, in other words, that the complainants are entitled to partition of the land occupied by the defendants. Gaines v. Agnelly, 1 Woods, 238, is not in conflict with the views here expressed. There the complainant claimed certain lands as devisee of Daniel Clark. The bill called upon the defendants to show their title to the particular portions of said land claimed by them. The defendants set up title in themselves by prescription, under the laws of Louisiana, and failed to make the disclosures called for. The complainant excepted for insufficiency. BRADLEY, Circuit Justice, in disposing of the exceptions, said, (page 244:) "Had the bill charged that the defendants claimed title to the lands in their possession under Relf & Chew, acting as executors of Daniel Clark, it might, perhaps, have been incumbent on the defendants to have cleared their possession of the imputation thus cast upon it. But no such charge is made in the bill. On the contrary, the bill expressly states that the complainant is ignorant of the title, and claim of title, by which the defendants severally hold, and calls upon the defendants to show their title. The defendants do show title sufficient to lay the foundation of a prescription; and on that defense they take their stand. It seems to me that they are not called upon to answer further. The bar set up is prima facie a good defense; and the exceptions must be overruled." The difference between that case and this is that here not only do the complainants charge that the defendant claims title to the land in his. possession under Mary Jane Barr, under whom the complainants claim by inheritance, but the complainants also charge that the defendant, and the heirs of Mary Jane Barr and their grantees, under whom he claims, have not now, nor have they ever had, any title other than that set forth by the complainants. This case is within the very exception stated by Justice BRADLEY, which he says might have made it incumbent on the defendants to clear their possession of the imputation thus cast upon it; and it is therefore an authority in favor of the complainants' exceptions. It is not necessary to go further into particulars. Enough has been said to make it clear that the exceptions must be sustained, and the defendant required to answer fully. The motion to suspend proceedings until complainants establish their title at law will remain undisposed of until after the defendant answers in accordance with the entry to be made under this opinion. It may be said now, however, that this is not a cause to be dismissed, if it shall appear that the complainants' title is disputed. The case was brought in the state court under the Code, which abolished all distinctions between actions at law and suits in equity, so far as relates to name and form, and substituted the civil action as the only form of action at law or in equity, excepting only proceedings specially provided for by statThe case is here by removal; and if the court shall be satisfied that it is necessary for the complainants to establish their title at law it will at the proper time make an order staying proceedings and for the trial at law of the question of title. The court will first, however, see to it that the pleadings are complete, and that the parties respectively have opportunity to take and file the depositions of any witnesses whose testimony, by reason of their age or infirmities, may be lost by delay. It ute. has been 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, there is no reason why the court should 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. "If a bare denial of the title, where there was no reasonable doubt or suspicion attending it, would authorize the dismissal of the complainants' bill, it would place this 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 defendant, and render the court the mere ministerial agent to carry into effect the wishes of the parties, in cases where there were no matters of controversy between them." There is no objection to the filing of the demurrer tendered by the defendant Keeshan and other defendants to the portions of the second amended bill, and the amendment thereto specified in the exceptions to Keeshan's answer. The defendants think it a proper precaution to file the demurrer, and have it passed upon in order to save their rights, and the court is disposed to accommodate them. But, as the questions presented are in no wise different from those considered in this opinion, an entry will be made sustaining the exceptions, and overruling the de murrer. LIBBY et al. v. CROSSLEY et al. (Circuit Court, D. Massachusetts. December 10, 1889.) 1. BILL OF EXCEPTIONS-DELAY IN PRESENTING FOR SIGNATURE. A bill of exceptions must be presented to the judge not later than the term at which the judgment is 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. 2. SAME-FORM. A paper presented to the judge, containing nothing but the propositions of law argued at the hearing, on the margin of which the judge, for the convenience of the counsel, noted 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 judgment has 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 C. Stevens and James McKeen, for plaintiffs. Thomas Hillis and John Hillis, for defendant Crossley. CARPENTER, J. This is an action at law, in which the writ was served in trustee process on certain insurance companies, for the purpose of attaching 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 assignment 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 excepted 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 me, 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 abstract 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. It is 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 circumstances." Muller v. Ehlers, 91 U. S. 249. The question has since been fully discussed 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 circumstances 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 should 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 substance of a bill of exceptions, since it contained no statement of the case, and no reference to the evidence. Furthermore, it was not presented to me as a bill of exceptions, and I was not asked to sign it. It was evidently, as it was doubtless intended to be, only a memorandum from which I might afterwards verify a bill of exceptions, as I should from my own minutes. I therefore decline to sign the bill. LUCAS v. RICHMOND & D. R. Co. (Circuit Court, D. South Carolina. December 2, 1889.) RAILROAD COMPANIES-WALKING ON TRACK-NEGLIGENCE. In an action for personal injury, it appeared that plaintiff was walking on defendant's railroad track, and stepped off a few feet, when a train passed, and he saw the shadow of something, and was felled to the ground; that a severe wound was found on his head, and a stick of wood, similar to the sticks used on the locomotive, was found imbedded in the earth near where he fell. There was no other evidence that the wood was thrown from the locomotive, or how it was thrown, or that it struck plaintiff. The speed of the train was about 60 miles an hour. Held that, as there was no contractual relation between plaintiff and defendant, there was no presumption of negligence against the latter, and a verdict should be directed for the defendant. On Motion to Instruct the Jury to Find for Defendant. J. L. Orr and J. C. Haskell, for defendant. SIMONTON, J. The plaintiff brings this action against the defendan for negligence. He was walking on the railroad track from Batesburg to Leesville, in this state. The track had been used for over 20 years as a pathway by the inhabitants of these two towns, which are about two miles apart. While so walking he heard a coming train, and stepped off the track, placing himself along-side of an embankment, about breast high, and some eight or nine feet from the track. Just as the engine and tender which constituted the train passed him, he saw the shadow of something in the air, and was felled to the ground. He lost consciousness for a time. Recovering, he pursued his way to Leesville, and was attended by a physician. A severe wound was found on the side of his head, made by some blunt instrument. The accident was about noon-day. In the afternoon he walked to the place of the accident, some 600 yards from Leesville. There he found a piece of wood, similar to that used for firing up locomotives on this road, and supposed that it was the piece which struck him. It was imbedded in the bank where he was standing. The witnesses for plaintiff say that the train was running at an unusual speed, some say 60 miles an hour. The track at this place is smooth and straight, within the corporate limits of Leesville, in the outskirts of the town. It must be alleged and proved. The gist of this action is negligence. There being no contractual relation be tween these parties, there is no presumption of negligence against the defendant. There is no proof that the stick of wood found by plaintiff, and supposed to be the cause of the injury, was not lying in the place it was found anterior to the accident. There is no proof that it ever was on the engine or tender. None that it came from either, or, if it did come from either, whether it came from under the engine, from in front of it, or from the top or the back of the tender. It may have been on the track, thrown off by the cow-catcher. It may have been on the rail, and have been thrown off by the wheel. It may have come from the tender, although there is no proof that the tender was full of wood, or, indeed, had any wood at all in it. This constitutes the distinction between this case and the class of cases quoted by Mr. Thompson in his work on Negligence. Kearney v. Railway Co., and notes, 2 Thomp. Neg. 1220. The maxim, res ipsa loquitur, does not apply. A case must be made out by facts, not conjecture. Proof must be furnished the jury, not grounds for guess-work; and these facts and proofs the plaintiff must establish before he can retain his standing in court. The jury are instructed to find a verdict for defendant. The circuit judge has been detained in Baltimore by trial of a capital case. This case is important to plaintiff. He should have the benefit of a full court. Leave is given him to move for a new trial before the court as soon as the circuit judge shall arrive. ON MOTION FOR NEW TRIAL. Before BOND and SIMONTON, JJ. BOND, J. It appears from the statement of facts in this case that the plaintiff, Lucas, was walking along the track of the defendant company, where the people of the neighborhood were accustomed to walk when visiting from one village to another. He saw the train of the defendant company approaching, and stepped off the track, and placed himself in an upright position, nine feet from the track, with his back against the bank of earth left there when the cut was made through which the track was laid. The engine and tender were propelled at the rate of 60 miles an hour. After it had passed about 20 minutes, the plaintiff was discovered seriously wounded in the road. There was, near where the plaintiff was standing, found imbedded in the bank a piece of wood like that found at a neighboring wood-pile where the tender had been supplied with wood. It appears the embankment against which plaintiff was standing was about breast high, as some say, others making it as high as his head. The piece of wood was not found on this elevation. Upon this case, the district judge, then sitting in the circuit court, directed the jury to find a verdict for the defendant. A motion for a new trial was made, which, at the request of the district judge, I have heard argued. I do not see upon what ground the plaintiff can recover. He was walking upon the railroad track, a common place to walk, perhaps, but still the railroad company was bound to exercise no extraordinary care because |