tions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in the consideration of particular cases." Broom, Leg. Max. 222.

If therefore an executor having perishable property in his possession and being unable to obtain an order from the orphans' court in time to prevent its loss, should in that exigency, in good faith sell to prevent such loss, then the court might properly apply the maxim lex non cogit ad impossibilia; and if subsequently to the sale, the court should pass an order approving his conduct, then the other legal aphorism, omnis ratihabitio mandato aequiparatur is equally applicable. But the pressure of no emergency created a necessity for the transfer and sale of the bank stock by the appellant, and its sale without an authori zation from the orphans' court was clearly such a dereliction of duty of the court, and the passage of an order of revocation. The court, therefore, simply performed a duty when it removed the executor, and there can be no reversal of this portion of its order. Justice requires than an executor or administrator should always be permitted to urge in his defense any matters of exculpation which may exist.

We have said that no such matters are shown in this case, and we do not consider it necessary to determine in advance what defenses might be sufficient for his protection in possible cases. The questions presented by the appeal from that portion of the order of the orphans' court which operates as a disallowance and rejection of the claim produced by the executor against the estate of his decedent, must now be considered. This branch of the case was most ably and elaborately argued by counsel, who seemed solicitous that this court should now finally determine the matters in controversy. But it must be manifest that it is beyond the power of the court on this appeal to reach any such result. The orphans' court can pass upon claims against the estates of decedents, but its determination is not final nor conclusive. If the claim is disallowed, the claimant is not prevented from seeking his remedy in a court of law or equity. If the claim is allowed the executor or administrator may refuse to pay it. The decision of the orphans' court is only prima facie and, if the claim is allowed, only operates as a protection extended to the executor in the event of its liquidation by a disbursement of the funds held by him in his representative capacity. Owens v. Collinson, 3 G. &. J. 37; Lee v. Lee & Welch, 6 id. 321; Stevenson v. Schriver, 9 id. 324; Stockett v. Jones, 10 id. 276; Hesson v. Hesson, 14 Md. 8; Md. Code, art. 93, § 101. And "claims of executors and administrators standon the same footing with those presented by other creditors of deceased persons." Semmes, ex'r of Young, v. Young's adm'rs, 10 Md. 246.

The orphans' court with its limited powers and circumscribed jurisdiction, cannot finally and conclusively determine any claim brought by a creditor against the estate of a decedent. The adjudication and conclusive determination of matters in controversy between an executor or administrator "and creditors appertain exclusively to the courts of law and equity." "The orphans' court cannot, under pretext of incidental powers or constructive authority, exercise any jurisdiction

not expressly given it by law." Scott v. Burch, 6 H. & J. 79; Bowie v. Ghiselin, 30 Md. 557. And when an order of the orphans' court has been appealed from, the decision of the court of appeals is not final and conclusive with respect to the litigating parties. The original jurisdiction was only prima facie "and the exercise of the appellate jurisdiction did not increase its effect." State, use of Stevenson, v. Reigart, 1 Gill, 1.

From what has been said, it follows that on this appeal there can be no final adjustment of the matters in controversy. It becomes the duty of this court to render just such a decision as the orphans' court should have rendered; and it can only have the same effect as it would have if rendered by the orphans' court, and no more. Such order is final and conclusive as respects the subsequent action of the court below, but, as has already been shown by the citation of authorities, is not conclusive as respects the rights of the parties to the cause. The principles applicable to the proofs must now be ascertained. This is a claim brought by an executor against the estate of his decedent. Now, it has been repeatedly decided that even when the claim of an executor against the estate has been allowed, if it should be contested before payment, its passage by the orphans' court is no evidence of its correctness. "It must be supported by testimony substantially sufficient for its establishment before a jury. The passage of the claim adds nothing to its intrinsic merits or authenticity when reviewed by the orphans' court." Lee v. Lee, 6 G. & J. 316. Bowling v. Lamer, 1 Gill, 363. "And for want of full proof the orphans' court may reject any claim against a deceased's estate after it has been passed and before payment. Edelen v. Edelen, 11 Md. 419; Kent v.

Waters, 18 id. 72.

This being a rule, rigidly observed, in relation to a claim already passed by the orphans' court, it would be strangely inconsistent to ignore its applicability when proceedings are pending with reference to claims which are, as soon as presented, most strenuously and persistently contested. The ends of justice cannot be attained unless the accounts of the claimants are closely scrutinized; and an adduction of proof, sufficient to carry conviction to the minds of intelligent jurors, should be required as a necessary preliminary to the determination of the controversy.

When we proceed to investigate the claims presented by the appellant it is discovered that they grow out of the complicated transactions of a partnership existing and doing business for a number of years. One of the items in the account is for losses incurred in the sale of real estate belonging to the partners. There is nothing in this record to show what portion of this estate belonged to the decedent. His estate is also charged with his proportion of the losses alleged to have been sustained by the firm in its numerous and multiform transactions. Although the evidence contained in this record is voluminous, there is no proof sufficient to show the precise nature and extent of the interest which the deceased had in the firm. It cannot be ascertained from the evidence whether he contributed a portion of the capital or only his time and attention to the transaction of the business. As the

claims are for losses, the ascertainment of these facts might possibly become vitally important to any determination in regard to their validity. In the absence of proof in relation to these important and material facts, the orphans' court could not do otherwise than reject the accounts of a claimant, against whom the doors of the courts of law and equity are not closed; and in which he may, therefore, pursue his remedy and obtain a final decision of the matters in controversy.

There being no error in any of the rulings of the orphans' court, its order must be affirmed with costs to the appellees in each appeal. ALVEY, Ch. J., and ROBINSON, J., dissented.

Order affirmed.

It is the duty of municipal authorities to see that the entire street is kept in a safe condition in closely built portions of the city; in rural localities this obligation does not exist, further than to maintain the ordinarily used parts in the centre convenient for travel.

Where the negligence of a plaintiff has contributed in any degree to the injury for which damages are claimed, he cannot recover.

Error to the court of common pleas of Washington county.

A city set up a culvert over a highway in the suburbs, and sprung a bridge across it, of heavy planks resting on stone abutments; the floor of the bridge was about six feet above the level of the water flowing in the culvert; the bridge was thirty-three feet wide, and the approaches to it were fourteen feet wide at the edges of the bridge, and widened as they receded; three of the sides of the approaches but slightly depressed; the fourth sloped about four feet to the level ground, this, to accommodate a water-way, emptying into the culvert; there were railings at the ends of the bridge to prevent accidents, but they only extended the width of and over the culvert. A., in passing over the bridge at night, became bewildered, and stepped down over a side of one of the approaches and was injured. He then brought an action for damages against the city, the jury finding a verdict in his favor.

The third point submitted by the plaintiff below, on the trial, was: "It was the duty of the defendant to afford the plaintiff, and all other travelers, a safe means of crossing the bridge, or of walking along the pathway on the approach thereto, both in daylight and in the nighttime; and if the evidence warrants the jury in finding that the city did not provide such safe means of traveling, the verdict should be in favor of the plaintiff, unless it appears from the evidence that his own negligence contributed in a material degree to the accident." "Affirmed."

The eighth point submitted by the defendant below on the trial was: "Under all the evidence the verdict should be for the defendant." "Refused, the whole matter is for the jury under the instructions given by the court."

Thos. H. Baird, for plaintiff in error. A. W. & M. C. Acheson, and Dougan & Todd, for defendant in error.

PAXSON, J. It was error to affirm the plaintiff's third point. The effect of it was to declare that it was the duty of the defendant corporation to keep this country road in a safe condition for travel both by day and by night. It is true the defendant is a city, and its charter provides that the corporate officers "shall cause the streets, sidewalks, alleys, courts, roads, lanes, squares, parks, etc., to be kept clean, clear of obstructions, dangerous openings, and in good condition and

repair." This, however, is but declaratory of the law as it exists throughout the State as regards the care of the public highways by municipal corporations charged therewith. It imposes no burden upon this defendant corporation not resting upon other corporations of like character. In the closely built-up portions of a town or city the duty of the authorities to keep the entire street and sidewalks in a safe condition may be conceded. All portions of it are being constantly used by day and by night. But this has never been held to be the rule as regards country roads. They are seldom, if ever, kept in repair from side to side. A sufficient portion of the middle only is kept in smooth condition, and safe and convenient for travel. The rest is often left dangerous by reason of ditches and obstructions of various kinds. Perkins v. Inhabitants of Fayette, 68 Me. 152; S. C., 28 Am. Rep. 84; Com. v. King, 13 Metc. 115; Blake v. Newfield, 68 Me. 365; Keyes v. Village of Marcellus, 50 Mich. 439; S. Č., 15 N. W. Rep. 542; 45 Am. Rep. 52; City of Scranton v. ill, 102 Penn. St. 378; S. C., 48 Am. Rep. 211.

The affirmance of this point involved another error. It imposed a qualification upon the doctrine of contributory negligence that has not been heretofore recognized. It was that if the negligence of the plaintiff did not "contribute in a material degree to the accident," he could recover. Without referring to the cases the doctrine of this court has always been, that if the negligence of the party contributed in any degree to the injury he cannot recover.

This is a safe rule, easily understood, and cannot well be frittered away by the jury. But if we substitute the word "material" for the word "any we practically abolish the rule, for a jury can always find a way to avoid it. The rule itself is valuable, and rests upon sound principles. We are not disposed to allow it to be undermined. By the defendant's eighth point, the court was asked to instruct the jury to find for the defendant. This the court refused to do. We are of opinion that the defendant was entitled to this instruction. There was no evidence of negligence on the part of the city. The bridge and culvert where the accident occurred were well constructed and reasonably safe. It is true a man might, as the plaintiff did, walk off the end of it on a dark night, and injure himself. But if there is a country road in Pennsylvania where a man groping about in the darkness of the night, without a staff or a light, may not be injured, I do not know of it. There are ditches, bridges, rocks, stumps, and other elements of danger, outside of the traveled portion. The rule applicable to paved streets in cities has never been applied to country roads, and cannot be without serious injustice to the rural portions of the State.

As this view of the case cuts it up by the roots, it is not worth while to discuss the remaining assignments of error.

Judgment reversed.