Fed. Rep. 115; Brand. on Bankr., 2d ed., 126, § 2, and cases there cited. It has, however, been expressly held that property generally exempt cannot be subjected in the bankruptcy court to the satisfaction of the debt of a creditor who holds a waiver of exemption as to this particular debt, or has a claim of lien on the exempt property. Re Grimes, 96 Fed. Rep. 534; Woodruff v. Cheeves, 105 Fed. Rep. 601, 606; Re Hill, 96 Fed. Rep. 185; Lockwood v. Exchange Bank, 190 U. S. 294; Re Hatch, 102 Fed. Rep. 280; Re Jackson, 116 Fed. Rep. 46; Ingram v. Wilson, 125 Fed. Rep. 913.

The cases cited by the judge below, to the effect that the court had jurisdiction, to wit: Cannon v. Dexter Broom Co., 120 Fed. Rep. 657; Re Butler, 120 Fed. Rep. 100; Re Boyd, 120 Fed. Rep. 999; Re Campbell, 124 Fed. Rep. 417, are all on the border line. They involve cases in which the state statutes provided that goods shall not be exempt against claims for the unpaid purchase price. They are flatly opposed by the cases cited supra.

There was no appearance or brief for appellee.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

By the express terms of subdivision 11 of section 2 of the Bankruptcy Act of 1898 jurisdiction is conferred upon courts of bankruptcy to determine all claims of bankrupts to their exemptions. When, therefore, as in the case at bar, property of the bankrupt has come into the possession of the trustee in bankruptcy, and the bankrupt has asserted in the bankruptcy court a claim to be entitled to a part or the whole of such property, as exempt property, the bankruptcy court necessarily is vested with jurisdiction to determine upon the facts before it the validity of the claimed exemption. An erroneous decision against an asserted right of exemption and a consequently erroneous holding that the property forms assets of the estate

in bankruptcy, to be administered under the direction of the bankruptcy court, while subject to correction in the mode appropriate for the correction of errors, Lockwood v. Exchange Bank, 190 U. S. 294, does not create a question of jurisdiction proper to be passed upon by this court by a direct appeal under the provisions of the act of March 3, 1891. Denver First National Bank v. Klug, 186 U. S. 202, 204, and cases cited. It necessarily results from the foregoing that as the bankruptcy court determined that the proceeds of the insurance policies in the hands of the trustee were assets of the estate in bankruptcy and not exempt property of the bankrupt, the jurisdiction existed to proceed to adjudicate the validity of an alleged equitable lien upon such property. Hutchinson v. Otis, 190 U. S. 552, 555.

As, therefore, upon the record before us, the jurisdiction of the court was not in issue within the meaning of the act of March 3, 1891, the direct appeal to this court was not properly brought, and the order must be

Appeal dismissed.

WOLFF v. DISTRICT OF COLUMBIA.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 62. Argued November 11, 1904.-Decided January 3, 1905.

An object which subserves the use of streets need not necessarily be considered an obstruction although it may occupy some part of the space of the street.

The duty of a city to specially illuminate and guard the place where an object is depends upon whether such object is an unlawful obstruction. Under §§ 222 and 233, Rev. Stat., District of Columbia, the District is not prohibited from permitting a stepping-stone on any part of the street because it is an obstruction per se nor is the District required to specially illuminate and guard the place where such stepping-stone is located.

196 U. S.

Argument for Plaintiff in Error.

THIS is an action for damages for injury caused to plaintiff in error (who was also plaintiff below) by an alleged negligent omission of duty by the District of Columbia.

On the twenty-seventh of October, 1895, about nine o'clock in the evening, plaintiff had occasion to visit Sangerbund Hall, a house on C street, in the city of Washington. On coming out, and for the purpose of approaching a wagon which was standing in the street, he walked rapidly across the sidewalk and, by falling over a block of stone called a stepping-stone or carriage step, which was on the sidewalk near the curb, broke his leg. Some time subsequently he was compelled to submit to its amputation.

The charge against the city was that it was a body corporate and municipal, and had the power, and was its duty, to keep the sidewalks free of obstructions and nuisances, one of which, it was alleged, said stone was. And further, that it was the duty of the District of Columbia to keep the streets properly lighted. In neglect of both, it was alleged, it did "allow and suffer" the stone to be securely fastened into and remain upon the sidewalk, and did "keep and continue" it there during the nighttime of the twenty-seventh of October, without a light to show its presence or a watchman to notify wayfarers of its existence. Damages were laid at $25,000. The District of Columbia pleaded not guilty. A jury was impanelled. At the conclusion of the testimony the District moved the court to instruct a verdict for it on the ground that the plaintiff had not made out a case. The motion was granted, and a verdict rendered in accordance with the instructions. A motion for a new trial was made and denied, and the case was then taken to the Court of Appeals, which affirmed the judgment of the court below. 21 D. C. App. 464.

Mr. John C. Gittings, with whom Mr. D. W. Baker was on the brief, for plaintiff in error:

The stepping-stone was an unlawful obstruction per se. Secs. 222-230, Rev. Stat., Dist. of Col.; Dist. of Col. v. Libbey,

Argument for Defendant in Error.

196 U.S.

9 D. C. App. 321; Curry v. Dist. of Col., 14 D. C. App. 423; United States v. Cole, 18 D. C. App. 504; Scranton v. Catterson, 94 Pa. St. 203; Davis v. City of Austin, 22 Tex. Civ. App. 460. The District of Columbia is liable to the same extent as other municipalities are. Barnes v. Dist. of Col., 91 U. S. 540; Woodbury v. Dist. of Col., 136 U. S. 450. Dubois v. Kingston, 102 N. Y. 219; Roberts v. Powell, 168 N. Y. 411, on which defendant in error relies can be distinguished.

It was the duty of the District of Columbia to so light this street as to show the existence of this stone.

Mr. E. H. Thomas, with whom Mr. Andrew B. Duvall was on the brief, for defendant in error:

No duty of the municipality was violated by permitting this stone to remain on the sidewalk. It was not, in view of its size and location, an unlawful obstruction, or a nuisance. See Building Regulation, January 1, 1877, p. 23, § 23; June 3, 1882, p. 23, § 23; November 1, 1899, p. 24, § 4; June 26, 1891, p. 27, § 11; December 1, 1892, p. 28, § 10; May 2, 1894, p. 31, § 10; August 8, 1892, Art. VIII, §3, p. 14; March 12, 1895, p. 23; Present Police Regulations, Art. VIII, § 10, p. 38; Webb's Digest, 65; Act of March 3, 1891, Bldg. Reg., pp. 80-89; O'Lind v. Lothrop, 21 Pick. 292, 297; 2 Dillon Munic. Corp. $734; Howes v. Dist. of Col., 2 D. C. App. 193; Dist. of Col. v. Libbey, 9 D. C. App. 325; Nor. Transp. Co. v. Chicago, 99 U. S. 635; Dubois v. Kingston, 102 N. Y. 219; Robert v. Powell, 16 N. Y. 414.

Municipalities must exercise ordinary care in the construction and maintenance of streets and sidewalks, but that duty is not violated by permitting a carriage block of the usual size to occupy the usual position of such blocks on the sidewalk, near the curb, and not upon that portion of the sidewalk which is designed for the use of pedestrians going upon or passing along the walk. Cincinnati v. Fleisher, 63 Ohio St. 229. A hitching post is not a defect. Macomber v. Taunton, 100 Massachusetts, 255; Rockford v. Tripp, 83 Illinois, 247. A

1

city's failure to place a fence around a water hydrant which is properly located cannot render it liable for an injury caused by a traveler driving against it. Vincennes v. Thuis, 63 N. E. Rep. 315; Canavan v. Oil City, 183 Pa. St. 611.

A municipality has the discretionary power to locate a fire plug on a sidewalk. Horner v. Philadelphia, 194 Pa. St. 542. Plaintiff in error was bound to exercise ordinary care. Howes v. Dist. of Col., 2 D. C. App. 188; Allis v. Columbian University, 19 D. C. App. 270; Dist. of Col. v. Ashton, 14 D. C. App. 579; Swart v. Dist. of Col., 17 D. C. App. 412; Quimby v. Filter, 62 N. J. L. 766; Moore v. Richmond, 85 Virginia, 538.

MR. JUSTICE MCKENNA, after making the foregoing statement, delivered the opinion of the court.

1. The first contention of plaintiff in error is that the stone was an unlawful obstruction, per se. This is deduced as a consequence from section 222 of the Revised Statutes of the District of Columbia, which reads as follows:

"No open space, public reservation, or other public grounds in the city of Washington, nor any portion of the public streets and avenues of said city, shall be occupied by any private person or for any private purpose whatever."

This section cannot be construed to prohibit putting upon a street any object without regard to its effect on the use of the street. The sweeping character of such a construction need not be pointed out. There are objects which subserve the use of streets and cannot be considered obstructions to them, although some portion of their space may be occupied. This is illustrated by a number of cases.

In Dubois v. City of Kingston, 102 N. Y. 219, a steppingstone three feet four inches in length and twenty inches wide was placed on the edge of the sidewalk. The court observed that the stone was not of unusual size or located in an improper place, and that it would be extending the liability of cities too far to hold them liable for permitting-stepping stones on the edge of sidewalks.