Bank, to which it was paid by defendant, and the next three were indorsed to Mr. Bright, to whom defendant paid two of them. The fifth, being the note in suit, matured in the hands of the payee, and thus was presented the first opportunity defendant had of successfully defending against the payment of said notes. Those that became due previously matured in the hands of innocent holders. Moreover, the defendant, misled by the misrepresentations of plaintiff's agent, failed to discover the fraud that had been practiced on him until about a year after the contract was executed. It was then too late to rescind. Plaintiff's action in the mean time was such as to preclude the possibility of placing either party in statu quo. Defendant had no other available mode of redress than by an action of deceit, or by defense in the nature thereof to such of the notes as had not passed into the hands of innocent parties before maturity. That he had a right to make such defense as he did we think is clear on principle as well as authority. The following are some of the cases in which the principle for which he contends is recognized: Tyson v. Passmore, 2 Pa. St. 122; Heastings v. McGee, 66 Pa. St. 384; Bower v. Fenn, 90 Pa. St. 359; Blygh v. Samson, 137 Pa. St. 368, 20 Atl. Rep. 996; Fisher v. Worrall, 5 Watts & S. 478; Brown V. Beecher, 120 Pa. St. 590, 15 Atl. Rep. 608; Pennock v. Tilford, 17 Pa. St. 456; Stubbs v. King, 14 Serg. & R. 206. There is no error in the learned judge's answer to plaintiff's seventh point, recited in the third specification. The fourth specification has already been noticed and dismissed. For reasons given in the learned judge's opinion discharging the rule for new trial, we think there is no merit in the fifth and sixth specifications. To sanction the introduction of affidavits made by some of the jurors after their verdict has been received and recorded by the court would be fraught with the most dangerous consequences. As the court correctly said, the sealed verdict which was brought into court by the jury "admits of but one interpretation, and cannot be tortured into meaning what the affidavits allege was the finding of the jury." The case was carefully and ably tried, and there appears to be nothing in the record to justify a reversal of the judgment. Judgment affirmed.

tributory negligence which will prevent his recovery from the steam-railroad company for injuries sustained in a collision between the car and another locomotive, though, if he had looked, he might have seen the approaching engine in time to have jumped from the car.

Appeal from court of common pleas, Lawrence county.

Trespass by Michael O'Toole against the Fittsburgh & Lake Erie Railroad Company for personal injuries. There was a verdict in defendant's favor, and, from a judgment thereon, plaintiff appeals. Reversed.

Oscar L. Jackson, for appellant. D. B. & L. T. Kurtz, for appellee.

DEAN, J. The defendant operates a steam railroad running through the borough of New Castle. Its road crosses at grade South Mill street, diagonally. The New Castle Electric Street Railway has its rails longitudinally on the same street. Hence, the two cracks cross each other at grade on this street. There are guard gates at the crossing, under the control of the defendant, to be raised or lowered on the approach of a locomotive to the crossing. On the 14th of March, 1891, the plaintiff, a shoemaker by trade,--a cripple from birth, in both feet,-took a seat in the street car to go north through the town. When the car came to a point about 75 feet from the crossing, a locomotive approached, going southwest; the watchman lowered the gates; the street car stopped; the locomotive crossed; the watchman raised the gates; the car started, and, as it reached the railroad track, was struck by another locomotive, following the one that had passed. There is some conflict in the testimony as to whether the gate was wholly or partly closed at the moment of collision. A house obstructs the view of the track in the direction from which the locomotive came, except when quite near the point of crossing. The plaintiff, in the collision, was thrown out, and seriously injured. Under the instructions of the court, the verdict was for the defendant. There was some evidence on the part of defendant that the collision was wholly the result of the negligence of the street-car company; that those in charge of the car disregarded the warning of the watchman and the lowering of the gate for the second locomotive to pass. But that the collision was the result of the negligence of one or other company, or of the concurring negligence of both, could not have been doubted, on the evidence. The learned judge of the court below, on the evidence, properly instructed the jury (1) that, if the collision was the result of negligence of both parties, each was answerable to plaintiff, and he could maintain his suit against either; (2) if the collision was the result, wholly, of the negligence of the street-car company, the defendant was not answerable. But the plaintiff, in his several assignments of error, complains of the instructions with ref

erence to his duty as a passenger, under the circumstances here developed. The fifth and sixth assignments, in substance, embrace this alleged error. The court instructed the jury: "If Michael O'Toole, upon that street car, could have seen the engine, and did not undertake to see it, or did not exercise reasonable care for the purpose of ascertaining whether they could proceed across the railway track in safety, then he would be guilty of contributory negligence; and if, by looking up the railroad at that time, he could have learned whether an engine was or was not approaching, and could at that time have gotten off the car if he discovered an engine approaching, and did not do that, then he would be guilty of contributory negligence, and could not recover." Then, further on, is this instruction: "But the fact that safety gates are erected does not in any way affect the responsibility or the liability of the railroad company in the operation of its railroad, or in the management of its trains. But, if you conclude that the gates were not lowered, that fact, of itself, is not sufficient to warrant you in finding a verdict for the plaintiff. Had the plaintiff been walking along the street, the fact that the gates were not lowered would not be an invitation to him to cross the railroad, in violation of the rule of law that he shall stop, look, and listen, when approaching a railroad crossing; and that rule is not taken away because the plaintiff happened to be in a street car at the time."

Defendant's counsel argues that these are mere excerpts from the charge, and, standing alone, do not fairly present the instruction really given to the jury; that this can only be properly understood when read in connection with what preceded and followed. Certainly, the charge must be taken as a whole, to arrive at the correct meaning. We have carefully read it, in the light of the evidence, and are forced to the conclusion the tendency was to mislead the jury. We find no evidence which warranted such instruction. Negligence is the absence of care according to the circumstances. There was evidence here from which the jury might have found there was no negligence on part of defendant, and that the street-car company was negligent. They might have found the defendant was negligent, and the street-car company was not. They might have found both were negligent. But a careful search for any evidence of negligence, under the circumstances, on part of plaintiff, has been fruitless. He was a passenger of the street-car company, which had contracted to carry him safely. He had a right to presume they would exercise the care required in this undertaking. When the car approached the crossing, it stopped. He was in no danger then, and had no reason to apprehend any. When it started, he had a right to believe it did so because the crossing was clear. Running a distance of about 75 feet, the collision occurred.

In the very few seconds which were necessary to accomplish this distance, the court, in substance, instructs the jury that it was plaintiff's duty to be on the lookout to learn if the railroad track could be safely crossed, and if, by so doing, he could have seen the approaching locomotive, ordinary care required him to jump off. quired him to jump off. To impose such a duty upon a passenger, under these circumstances, is going much further than any court has yet gone. All experience has demonstrated that to get off a moving car is highly dangerous. Therefore, it is held that such an act is negligence per se, and the passenger; if thereby injured, except in very rare cases, is guilty of contributory negligence, and cannot recover. Hence, here, if the plaintiff had been on the lookout, and had seen the approaching locomotive, ordinary care did not require he should make a dangerous jump to escape a problematical collision. Admit he had some reason to apprehend danger if he remained in the car. At the worst, this was only, to him, a possible danger. A careful man, ignorant of the power of control of the engineer over the locomotive, or of the motorman over the electric car, and knowing nothing of the rules governing them in approaching the crossing, might very well think one or the other would stop before reaching it. He had no right or power to control or direct those in charge of either. He was warranted in assuming that they knew their business better than a shoemaker, and would, by proper care, avert the possible collision. Therefore, holding him rigidly to the rule of ordinary care, at best, he had a choice of perils; a choice to be exercised on the instant by a man crippled in both feet, and consequently a not very agile jumper. He had been put in this position by no act of his own, but by the negligence of one or other, or both, of the railroad companies. We fail to see any evidence of absence of ordinary care here, under these circumstances. The instruction, in substance, that ordinary care required plaintiff to perform the duties of conductor and motorman; that, practically, he was to exercise the same care as if he had been driving his own horse,-"stop, look, and Histen,"-was erroneous, and calculated to mislead the jury. It would have been but a step further, and a short step at that, to have directed the jury to inquire whether plaintiff had not been guilty of contributory negligence in taking passage on a street car, which he knew, in its route, would cross a steam railroad at grade. The law imposes no such duty upon the traveler by public conveyance as laid down in this charge. The cases of Township of Crescent v. Anderson, 114 Pa. St. 643, 8 Atl. Rep. 379, and Dean v. Railroad Co., 129 Pa. St. 514, 18 Atl. Rep. 718, cited and relied on by appellee as sustaining the instruction complained of, really recognized the opposite doctrine. Both are cases where the plaintiffs, when injured, were riding in private vehicles driven by another, and

both were injured by the contributory negligence of the driver and a third party, the defendant. In both the decision was put on the ground that the negligence of the driver of the horse was apparent, and he was, to some extent, under the direction or control of the party injured. There was no attempt, by remonstrance or otherwise, by the party injured, to restrain the negligent driver. The negligence of the driver was not, in either case, imputed to an innocent plaintiff, but the latter was held to have participated in the negligence which caused the accident. Borough of Carlisle v. Brisbane, 113 Pa. St. 544, 6 Atl. Rep. 372, is to the same effect; and the decision is expressly put on the ground that, although the conveyance was a private one, the injured party did not, to any degree, participate in the alleged negligence of the driver. The plaintiff here was a passenger in a public conveyance. He conformed to the rules of the company; kept his seat, relying on the vigilance and care of those in charge of the car, as his contract gave him the right to do. There was upon him no duty of moving the car with caution at dangerous crossings; no duty of watching for possible collisions, and jumping off in apprehension of them. Consequently the learned court below erred in its instructions embraced in plaintiff's fifth and sixth assignments of error. The judgment is reversed, and venire facias de novo awarded.

In re KARSTORP'S ESTATE. (Supreme Court of Pennsylvania. Oct. 30, 1893.)

FRAUDULENT CONVEYANCES RIGHTS OF CREDITORS-PROFITS OF GRANTEE.

A gift of money by a husband to his wife, void as against his existing creditors, and used by her as part payment for an hotel, does not entitle the creditors to subject to their demands any part of the profits realized by the wife in conducting the business, and in afterwards selling the same at an advance, but all that they can ask is a return of the money, with interest, which the husband gave away ineffectually as against their rights.

Appeal from court of common pleas, Jefferson county.

On final account by Della Karstorp, administratrix, etc., of H. L. Karstorp, deceased. Her account was excepted to by creditors of deceased, and the matter was referred to an auditor, who found in favor of the creditors. From a decree of the court confirming the auditor's report, the administratrix appeals. Reversed.

The auditor's report is as follows:

"In this case the exceptants seek to surcharge the administratrix with certain moneys arising from the sale of an hotel property in Reynoldsville borough known as the 'Hotel Karstorp,' and which she has not brought into this, her final, account. The administratrix claims that said hotel was her own property, purchased with her own money,

and that she should not therefore account to the estate of H. L. Karstorp for any of the proceeds of said sale. On the other hand, it is contended by the exceptants that the said hotel belonged to the decedent, H. L. Karstorp, was paid for with his money, but the purchase caused to be made in his wife's name, for the purpose of defrauding his creditors. They say that the administration should, therefore, be surcharged with the moneys already received by her from the sale of said property, and that this account should not be passed as a final account, but adjudged to be only a partial account, and the administratrix required to exhibit another account when she shall have received the balance of the purchase money, charging herself therewith.

"From the testimony it appears that on the 6th of October, 1880, H. L. Karstorp purchased a lot of ground on Hill street, in the borough of Reynoldsville, for the sum of $50. A dwelling house was erected and some other improvements made upon said lot. The lumber for the building of house, fencing of lot, and other improvements was furnished by Mr. Peter Emerick, the father of Mrs. Della Karstorp, and was a gift to her. On the 26th of August, 1886, Mr. Karstorp sold said property to Joseph Morrison for the sum of $800. He divided the money received from said sale, saying it was her share of the lumber her father had furnished for the improvements above mentioned. This money was placed in Seeley & Alexander's bank to the credit of Della Karstorp, who subsequently allowed her husband to draw it out and use it, with the understanding that he was to replace it, and pay for the use of it. The bank books show that he did draw out money from her account, and also deposited various sums to her credit from time to time. On the 27th of December, 1888, the said hotel property was purchased by article of agreement between Mrs. Amelia A. Reynolds and Della Karstorp for the consideration of $3.750, as follows: $1,000 on the execution of the agreement, $500 December 27, 1889, $500 December 27, 1890, $500 December 27, 1891, $500 December 27, 1892, and $750 December 27, 1893. The $1,000 hand money was paid by check of Della Karstorp. Shortly afterwards Mr. and Mrs. Karstorp moved into said property, and began keeping hotel, and made some improvements on the premises. The second payment and its interest was paid out of the proceeds of the business of said hotel. L. Karstorp died July 8, 1889, and letters of administration on his estate were granted to his widow, Della Karstorp, September 2, 1889. Personal property to the amount of $300 was duly appraised and set apart to and accepted by her. The retail liquor license of H. L. Karstorp was at the September sessions of court transferred to said Della Karstorp, and she continued to run said hotel until the 8th day of January, 1890, when she

H.

sold said hotel, the furniture and fixtures, liquors and stocks therein, (including the articles appraised and set aside to her as widow of decedent,) and the business of said hotel, to C. G. Matson, by article of agreement, for the consideration of $6,500, as follows: $2,700 in hand, $1,500 in one year from that date, and the balance, $2,250, to be paid to Mrs. Amelia A. Reynolds, being the balance due her from Della Karstorp on the contract between them. The hand money, $2,750, and $500 of the payment due January 8, 1891, has been paid to Mrs. Karstorp, leaving $1,000 due from C. G. Matson on said contract.

"Considerable testimony was taken to prove that the lumber furnished by Mr. Emerick to his daughter for the improvement of the Hill street property was not worth $600. The auditor is of the opinion that it is not necessary to consider this evidence, as the debts due the exceptants were not contracted until after the sale to Morrison, and under these circumstances Mr. Karstorp would have a right to make such division of the money between himself and his wife as he chose, or to give it all to her for that matter. However, if we were to consider this evidence, a comparison of the amounts that each put into this property would show that the wife did not receive an undue proportion of the proceeds of such sale. But it is not possible, in any view of the evidence or the law, as the auditor believes, to find that all the balance of the $1,000 paid to Mrs. Reynolds at the date of the purchase from her was the money of Della Karstorp. Doubtless the husband, under the arrangement and bargain between them, would have a right to pay his wife for the use of her money for

the 28 months that he had it, but the amount claimed, $400, is altogether too large. The auditor does not believe the evidence shows that the administratrix has been guilty of fraud, as she seems to have acted in accordance with what she believed to be her just and legal rights in the premises. But he is of the opinion that she should be surcharged with such portion of the proceeds of the sale of said hotel property as would give the creditors of H. L. Karstorp the benefit of whatever amount he actually had in the same. It is somewhat difficult to arrive at this amount. H. L. Karstorp seems to have made some repairs to the premises, the value of which has not been proven. The sale to Matson embraced the real estate, the furniture and fixtures, liquors and stock in said hotel, (including the widow's $300 in furniture,) and the business and good will of the same. The hotel license has been transferred to her, and she had run the hotel a considerable time prior to the sale to Mat

Originally, then, Mrs. Karstorp's $600 went into the purchase of this hotel, together with 28 months' interest on the same, or $84. There should be added also $300, the appraised value of the property, set aside to her as widow of the decedent. Besides these

amounts are the liquors, stock, etc., sold to Matson, the value of which has not been shown. H. L. Karstorp, then, had in the purchase $400, less $84, the interest above mentioned, or $316. With these facts and figures before him, the auditor considers it just to surcharge the said administratrix with one-fourth of the $3,250 which she has already received from the sale to C. G. Matson, to wit, $812.50, and further to pass the present account as only a partial account, and require said administratrix to file another account after receiving the remaining $1,000 from said Matson, charging herself therein in with one-fourth of said amount as belonging to the estate of H. L. Karstorp, deceased."

C. Mitchell, for appellant. W. F. Stewart, John Conrad, Means & Clark, M. M. Davis, and Winslow & Calderwood, for appellees.

MITCHELL, J.

When Karstorp sold his house in 1886 he gave his wife $600 as her share from the lumber that her father had given her for the construction of the house, and the auditor finds that this was a fair proportion of the value; but, even if not, it was a good gift, as Karstorp was not then indebted. The purchase of the hotel property in December, 1888, was in appellant's name, and the auditor finds that it was made by her. This was the most important fact in the case. The creditors contended that the purchase was made by Karstorp, and that it was put in his wife's name by legal, if not actual, fraud; but the auditor found otherwise, and the court, though apparently entertaining some doubts, indicated by his expression that, "if there is any one to complain here, it should be the creditors," nevertheless confirmed the finding, and we therefore accept it, in the absence of clear proof of error. The first payment for the hotel was $1,000, and of this the auditor finds that only $600, with interest, was the money of the appellant. It is a plain inference, though not specifically found, that Karstorp at that time was indebted, so that he could not, as against his creditors, pay his wife more than legal interest. Something over $300 of Karstorp's money, therefore, went into this hotel purchase, and could be followed by his creditors. Upon this basis the auditor surcharged the appellant with one-fifth of the purchase money subsequently received by her for the sale of the hotel. This was an error. On the facts as assumed by the findings, when his wife purchased the hotel Karstorp gave her the difference between what he owed her and the $1,000 she paid. This was a valid gift between themselves and against all the world but the creditors, and the latter's right, in the absence of fraud on her part, was only to annul it, and treat it as so much money of their creditor; not to follow it into the profits of a separate investment by her. What the arrangement was between the husband

To

and wife as to the business, and what his interest in the hotel was, if he had any, was not shown, and cannot be assumed in the absence of evidence. On the finding of the auditor it was her property. The husband lived only six months after its purchase. She continued the business after his death, made the subsequent payment on account of the purchase, and finally the sale out of which the main profit of the whole matter accrued. any share in those profits the creditors have shown no valid title. All they can legally ask now is the return of the money, with interest, which the husband gave away ineffectually as against their rights. The decree is reversed, and decree now that the account stand as a final account on which the appellant is to be surcharged with $316, with interest from December 29. 1888, and the record is remitted for distribution accordingly.

EJECTMENT INACCURACIES OF TRIAL COURT IN STATING TESTIMONY-WITNESS-COMPETENCY. 1. Alleged verbal inaccuracies of the trial court in stating the testimony of witnesses, to which counsel made no objection on trial, present no ground for reversal.

2. In ejectment it appeared that certain land was conveyed to K., plaintiff's ancestor, the grantor reserving to himself therefrom a lot one of whose boundaries was the east end of a bridge, and defendant thereafter acquired such lot by mesne conveyances. If, as claimed by plaintiffs, the east end of the bridge had been moved since the conveyance to K., the land in dispute belonged to them; otherwise to defendant. Held, that it was error not to permit defendant to testify that since the death of K. the location of the old abutment of the bridge had been uncovered by a flood, and to prove its location as defendant then saw it; such evidence not being objectionable on the ground of defendant's incompetency to prove the existence of a fact in the lifetime of K., now deceased, or his predecessors in title.

Appeal from court of common pleas, Fayette county; Ewing, Judge.

Ejectment by Ada C. Krepps and others against Wilson Carlisle and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Edward Campbell, for appellants. Mr. Lindsey, for appellees.

DEAN, J. By articles of agreement dated the 19th of March, 1829, Neal Gillespie sold to Samuel J. Krepps, for the consideration of $1,400, a piece of land in the borough of Brownsville, Fayette county. The land was described as "situate on the southeast side of Water street in the borough of Brownsville, adjoining lots of Jonathan Binns, George Shuman, and others, and now in the tenure of John Snowden, together with all the bottom land on Dunlap's creek, attached to and adjoining the same, with the exception and reservation of a lot of ground run

ning from the corner of Eli Abram's lot, or the lot now in said Abram's occupancy, to the east end of Dunlap's creek bridge, and extending back from the front on Water street 60 feet." The land described in this agreement, it is not disputed, passed to these plaintiffs. Afterwards, on 13th of June, 1832, the same Neal Gillespie by deed conveyed to Eli Abrams the part reserved, describing it as "all that piece of ground situate in the borough of Brownsville, on the southeast side of Water street, extending from the lot now owned by Eli Abrams to the east end of Dunlap's creek bridge, and rur.ning back 60 feet from the front of Water street." The title to the land described in this deed, it is not disputed, passed to Samuel Thompson, one of defendants. Running the line of defendants' lot, the Abrams lot, owned by Abrams before the sale by Gillespie to Krepps, the ancestor of these plaintiffs, and before the conveyance to Abrams by Gillespie, to the east end of Dunlap's creek bridge, where the end of the bridge is now, would give the land in dispute to defendants. It would be excluded by the reservation in the articles of agreenient, and plaintiffs would have no right to the possession. But plaintiffs alleged, and adduced evidence at the trial tending to show, that 60 years ago, when the articles of agreement were made with Krepps, and the deed made to Abrams, the east end of the bridge was not where it is now; that it was within three or four feet of Abram's house; and that in the years following, 1829 and 1830, it was so recognized by both the grantees of the Gillespie title. This evidence was met by contradictory evidence on part of defendants, and it was wholly a question Plaintiffs' location of the eastern end of the of fact for the determination of the jury. bridge over Dunlap's creek, if the jury found that was the true location when the grants were made, gave the lands in dispute to them. On the other hand, if the weight of the evidence failed to convince the jury that this was the true location, plaintiffs had no right to the possession. The court below, assuming as the parties themselves assumed, that this was the turning point in the case, in a very clear charge submitted the evidence to the jury, who found for plaintiffs. Judgment having been entered on the verdict, defendants took this appeal, assigning seven errors to the charge. They relate for the most part to alleged verbal inaccuracies of the court in repeating the testimony of witnesses. Of course, in referring to testimony, the court should give correctly the substance of it, and caution the jury who have heard it as to their right in determining exactly what fell from the lips of the witness; but the court is not bound to repeat it verbatim, nor is the charge, in the hurry of a common pleas trial, necessarily to be a polished essay on the law and the facts bearing on the issue. If this were so, the