repealed by the act of 1892) authorize an appeal from the county commissioners to the circuit court where either party has a right to a trial by jury. That court is, by section 82, "authorized to ratify, reject, alter or amend the proceedings before the county commissioners and in said court, so as to bring the merits of the case fairly to trial, and the said court is hereby further authorized to pass such judgment in the case as the county commissioners ought to have passed, including costs; and such judgment shall be final and may be enforced by due process of law." The powers thus given are very broad. The county commissioners have original jurisdiction conferred on them, the circuit court is the appellate court, and no right of appeal is given to this court.

The record in this case discloses the fact that the proceedings before the commissioners were conducted with great care, and unusual particularity. The omission of the signatures of the petitioners at the usual place is the only evidence of any want of care, which was doubtless a mere oversight, and we have determined that there is nothing in that omission to render the proceedings void. The orders passed, the notices given, and other acts done, meet the requirements of the stat.te,-certainly, so far as they affect any jurisdictional questions. Such being the case, and the circuit court having jurisdiction, as the appellate court, and its judgment leing made final by the language of the statute, it follows that this court is without anthority to review the action of the court below, as has been determined by numerous ases in this state. We will only refer, in addition, to 66 Md. 582, 8 Atl. 464; Greenland v. Commissioners, 68 Md. 62, 11 Atl. 581; Rayner v. State, 52 Md. 374; Judefind v. State, 78 Md., 28 Atl. 405; and Moores v. Water Co. (decided at the last term of this court) 29 Atl. 1033. It follows from what we have said that the writ of error must be quashed, and the appeal dismissed. Writ of error quashed, and the appeal dismissed.

McCUNE v. McCUNE. Appeal of FULLERTON. (Supreme Court of Pennsylvania. Nov. 12, 1891.)

JUDGMENT-VACATING RELEASE-PRIORITIES.

1. A senior judgment creditor, who erroneously enters satisfaction of his judgment, is still entitled to priority, on such satisfaction being set aside, as against subsequent judgment creditors, whose judgments are recovered prior to the entry of satisfaction, and who have in no way been misled by such entry.

2. The equitable right of a judgment creditor, whose judgment is recovered after an entry of satisfaction entitling him to priority over a senior judgment creditor, which satisfaction is set aside, can only be enforced where the property of the debtor is sufficient to more than pay intermediate judgments between his and that of the senior judgment creditor.

v.30A.no.11-37

Appeal from court of common pleas, Westmoreland county.

Action by John McCune against Robert McCune. From an order distributing the fund arising from a sheriff's sale of defendant's (R. McCune's) land among his judgment creditors, John Fullerton, aḍministrator, appeals. Reversed.

John Latta, for appellant. Ogden, Kline & Eicher, for appellees.

WILLIAMS, J. Fullerton, the appellant, was the holder, in April, 1889, of three judgments against the defendant, which were at that time the only liens upon the real estate sold by the sheriff in this case. Afterwards, and before the 13th day of March, 1893, five other judgments were entered against the same defendant, amounting together to about $1,800. The judgment of John McCune on which the real estate was sold was one of these. On the 13th day of March, 1893, as part of an arrangement for the sale of the real estate to Baker, the appellant made an entry of satisfaction on the record of each of his judgments. The arrangement for the sale was not consummated, and nothing was paid to Fullerton on his judgments. He afterwards obtained a rule on the defendant to show cause why the entry of satisfaction should not be stricken off, and on the 4th day of November, 1893, the rule was made absolute, with a proviso "that the rights of other lien creditors should not be impaired." Pending this rule, Charles McCune, a son of the defendant, entered a judgment against his father for $268. The sale by the sheriff took place on the 18th of November, 1893, and realized $730. This is the fund for distribution. The general rule is that liens are entitled to payment in the order of their priority, but it is alleged that this rule has been modified in this case by the erroneous entry of satisfaction by Fullerton on his judgments. We are to inquire, therefore, into the effect of that entry, and the order of the court by which it was stricken off, upon the rights of the holders of junior judgments, and upon the rights of Charles McCune, whose judg ment was entered after the entry of satisfaction, and before the order of the court striking it off. It should be borne in mind that distribution requires an adjustment of the equities between the claimants, and must be made "according to law and equity." Tindle's Appeal, 77 Pa. St. 201; Landell's Appeal, 105 Pa. St. 152. A prior lien will be postponed to a junior when this is necessary to do justice to the holder of the junior lien, otherwise the order of priority will be followed.

The five lien creditors whose judgments were entered while the judgments of the appellant were standing in full force, and before the entry of satisfaction was made upon them, have not been misled by the appellant's mistake in entering satisfaction upon

them. They have not suggested any reason for supposing that they have been prejudiced in any manner by his act, or by the order of the court relieving him from it. They show no intervening rights, acquired while the judgments appeared on the record to be satisfied. They have, therefore, no equity to set up against the appellant that ought in good conscience to deprive him of the benefit of the correction of his mistake in making the eutry of satisfaction in advance of payment. His judgments were in full life when theirs were obtained, and when the sheriff's sale was made, and we can see no reason why he is not entitled to the benefit of his priority of lien.

The case of Charles McCune stands on somewhat different ground. His judgment was entered pending the rule to strike off the entry of satisfaction, and if it should appear that he was misled by the entry, and had advanced money or given credit to the defendant upon the state of the record, then an equitable right to priority over the satisfied judgment might be asserted. But if the existence of such a right be shown, it could not affect the intermediate judgments. They were in full force, and Charles McCune had notice by the record of their priority and amount when his own judgment was entered. He cannot be paid out of the fund until these judgments are first satisfied. How, then, can his equitable right against Fullerton be enforced? It cannot be, unless the fund is large enough to pay the judgments that have priority over him; and in that case, as Fullerton is entitled to priority over these intermediate judgments, the fund must be distributed to the liens in their order, beginning with those of Fullerton. But if the fund is large enough to pay the intermediate judgments and leave a surplus that would have gone to McCune if Fullerton's judgments had been actually paid, as they appeared to be, McCune may ask the application of the surplus to his lien as against Fullerton.

Let us suppose, for purposes of illustration, that the fund was $2,000, and the liens were $2.200, divided as follows: Fullerton, $300; intermediate liens, $1,600; McCune, $300. The order of appropriation, following the order of the liens, would give Fullerton $300, the intermediate judgments $1,600, leaving $100 only for McCune. But as between McCune and Fullerton, the former, if his equitable right of priority be established, is entitled to take from the latter so much of the money awarded to him as may be necessary to pay the balance of his judgment. The result would be that $200 of the money appropriated to Fullerton would be transferred to McCune, and his judgment would be paid in full, and that but $100 would remain applicable to Fullerton's judgments. If we suppose the fund to be $1,600 or less, this would all be required to pay the intermediate judgments of which McCune had

ABBETT, J. On the evening of November 16, 1892, about a quarter past 10 o'clock, the deceased was walking northerly on the easterly sidewalk of Fourth street, in the town of Harrison, apparently going towards his home, in Hamilton street, where he had resided for over four years previously. When he had nearly reached Essex street, and was about on the northerly tracks of the main line of the Delaware, Lackawanna & Western Railroad, he was struck by a locomotive of that road, which was drawing a passenger train on the west-bound tracks from Hoboken to Newark. It was running at the rate of about 27 miles an hour. He was instantly killed. The only witness for plaintiff that saw him while he was near to and approaching the railroad tracks, and was thereon, and who saw him struck, was Mary Killan, who lived on the third floor of the house on the northeast corner of Fourth and Essex streets, a short distance north of the place where the deceased was killed. She was looking out of the window, waiting for her husband. It was a cloudy, dark night. It was not raining, but there was no moon or stars visible. When she first saw him, be was walking along the easterly sidewalk of Fourth street, coming northerly towards her house, and when he was struck he had his

foot on the railroad tracks nearest her, and then she saw that he wanted to get back, but he could not, as the train struck him before he could retreat. She could not see who it was, and thought it might be her husband. Gates had been constructed at this crossing for a year or more before the accident, but they had never been used up to that time, and there never had been any flagman stationed there. Deceased was familiar with this locality and its dangers, as he had worked at Illingsworth's Steel Works, at the foot of Fifth street, nine to ten months before the accident, and lived in Hamilton street. In going to and returning from his work he passed this place and the other points of danger, or near thereto, and within sight thereof, twice a day. He used either Fourth street or Third street or Fifth street to reach the steel works or his home. He had to cross daily the new main lines of the Delaware, Lackawanna & Western Railroad, and also the old line of that road, which was not then in use. He also crossed daily both lines of the Pennsylvania Railroad which run into Newark. The deceased, in approaching the place of the accident, when he reached the old tracks of the Delaware, Lackawanna & Western road, could see a quarter of a mile looking in the direction of any coming west-bound train. He then had 70 to 80 feet to walk to the main tracks of said road, and when he reached these tracks, if he had looked, he could have seen a westbound coming train 1,290 feet distant, and an east bound train as far west as the station, a distance of about 1,800 feet. During the time a locomotive was covering these distances it would be in sight all the time, if deceased had looked. The distance across the main tracks of the Delaware, Lackawanna & Western between the outer rails was 11 feet 81⁄2 inches. It was in crossing this space that he was struck and killed. If he had looked before he had attempted to cross this space, the locomotive that struck him would have been in his sight all the time for 1,290 feet. If he had kept off or gotten off the tracks, he would have been safe. There was no obstruction or anything in the way to prevent deceased seeing the approaching train in time to avoid the danger. He had nearly crossed this 11 feet 81⁄2 inches space, and had his foot on the northerly tracks of the main line of the Delaware & Lackawanna road, before he heard or saw the coming locomotive, which was then almost on him. It was not until then that he seems to have looked for or had any apprehension of danger, as until that moment he had been walking straight ahead up to and across the Delaware, Lackawanna & Western main tracks. Then, with his foot on these tracks, he tried to get out of his dangerous position, but he was too late; he was almost instantly struck by the locomotive. The deceased, in his lifetime, could see and hear, and there was nothing that oc

curred or existed in any of the surrounding circumstances to prevent his seeing the locomotive, if he had looked before he began to cross this dangerous space of 11 feet 81⁄2 inches. The brother of deceased, John Hefferan, after stating that it was a dark, cloudy night, stated that you could see the headlight of a locomotive as far as Sixth street: that is, over 1,000 feet. Patrick Connelly testified that you could not tell whether a coming locomotive on the west-bound track was on the Pennsylvania tracks or the Delaware & Lackawanna tracks until it reached Fifth street. This is over 500 feet distant from the place deceased was struck. There is no evidence that deceased looked at all, and, if he had done so, and saw an approaching train, and was uncertain whether it was on the Pennsylvania or the Delaware, Lackawanna & Western tracks, as a prudent man he should have stopped and ascertained, before crossing the tracks, on which it might be coming. It was clear at the close of plaintiff's case that deceased did not look for an approaching train before going on the tracks to cross them. At the rate the train was running it would have taken the train about 25 seconds to run the 1,000 feet from Sixth street to the place of the accident. It would have been clearly imprudent for deceased to have attempted to cross the tracks in front of such a train if he had looked. looked. It would seem to be that, hearing no whistle or bell, and no sound of an approaching train, deceased looked neither to the right nor the left, and, using no precaution whatever, walked straight ahead up Fourth street, and over these tracks, and never did anything until the train was within a few feet of him, when it was too late for him to do anything to save himself. This was the condition of the case at the end of plaintiff's case, and there was no evidence thereafter that helped it in any way.

The defendant asked for, and the trial judge refused to grant, a nonsuit, and an exception was allowed to this ruling. "The plaintiff had a right to cross the railroad at that place if in so doing he exercised care to avoid collision with trains of the company. By law the plaintiff was charged with the duty of looking and listening before he attempted to cross." Berry v. Railroad Co., 48 N. J. Law, 141, 4 Atl. 303. "A railroad track is a place of danger, and any one who incautiously places himself upon it, and sustains damage in consequence of such carelessness, is entirely remediless. The law requires of all persons approaching such a point of peril the exercise of a reasonable caution, and if this duty is neglected, and an accident thereby occurs, it says to those who are thus in default that they must bear the ill which is the product, in whole or in part, of their own folly." Railroad Co. v. Matthews, 36 N. J. Law, 531. There was in this case no distracting danger from any other source, as in the case of Connelly v. Rail