case, to recall defendant and prove by him that he had been in the penitentiary.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 899-905, 1006, 1007.] 5. HOMICIDE-INSTRUCTIONS-SELF-DEFENSE.

On a trial for homicide, an instruction that, if defendant had reasonable grounds to believe that he or his brother were in immediate danger of death at the hands of decedent, he should be acquitted on the ground of necessity, properly gave defendant the same right to defend his brother as himself.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 177-181, 633.]

Appeal from Circuit Court, Lee County. "Not to be officially reported." Abner McQueen was convicted of manslaughter and he appeals. Affirmed.

Sutton & Hurst, for appellant. N. B. Hays and C. H. Morris, for the Commonwealth.

HOBSON, C. J. Appellant, Abner McQueen, was indicted jointly with his brother John for the murder of Arthur Lambert, and was found guilty of manslaughter; his punishment being fixed at nine years in the peni tentiary.

He filed an affidavit for a continuance, but the court refused to continue the case or allow the affidavit to be read as the testimony of the absent witnesses, and of this he complains. The statute requires that the affidavit must show that due diligence was used to obtain the presence of the witnesses. Cr. Code Prac. § 189; Civ. Code Prac. § 315. The only statement in the affidavit as to diligence is in these words, following the names of the witnesses: "For whom he has had subpoenas issued and placed in the hands of proper officers, and that said subpoenas cannot now be found with the papers in this case." It is not shown when the subpoenas were issued, or when they were placed in the hands of the officers, or what officers, and for all that appears no diligence may have been used to obtain the presence of the witnesses. The affidavit was therefore insufficient as to the witnesses for whom the subpœnas were issued.

It is stated in the affidavit that one of the witnesses, Robert Calmes, was recognized at the last term of the court to appear on that day, and that he was in Indian Territory on temporary business; but it is not shown when he left the state and went to Indian Territory, or when he was expected to return, and for all that appears the defendant might by ordinary diligence have taken Calmes' deposition. In addition to this a number of witnesses who were present at the homicide were introduced on behalf of the commonwealth and the defendant, and it is by no means clear that, if the affidavit had been read as the testimony of Calmes, it would have had any substantial effect upon the jury; for every fact referred to in the affidavit was stated on the trial by a number of other persons who were present at the homicide, and the statements of

Calmes as contained in the affidavit were of such a general character as to throw little light on the case.

The demurrer to the indictment was properly overruled.

The ruling of the court in allowing the commonwealth attorney to recall the appellant and prove by him that he had been in the penitentiary was not an abuse of discretion. The court has a wide discretion in allowing a witness to be recalled.

The court distinctly instructed the jury that if they believed from the evidence that the defendant believed, and had reasonable grounds to believe, that he or his brother were then in immediate danger of death or great bodily harm at the hands of Lambert, or that this reasonably so appeared to him at the time he cut Lambert, they should find him not guilty on the ground of apparent necessity. The instructions gave him the same right to defend his brother as himself. While the proof is conflicting, we cannot say that the verdict of the jury is not supported by the weight of the evidence. The jury seems to have concluded from the evidence that while Lambert and John Morgan were engaged in a difficulty, and John was getting out of the way of Lambert, Abner ran up behind Lambert and cut his throat with his knife, when Lambert did not know that appellant was approaching him; and they seem also to have concluded from all the evidence that at the time of the cutting there was no reasonable ground for the appellant to believe that his brother was in danger of death or great bodily harm at the hands of Lambert, as John McQueen was at the time some 15 feet from Lambert, and a bystander by the name of Hubbard was then standing between Lambert and John McQueen and had his hand on Lambert's shoulder, interposing between him and John, whom Lambert was pursuing.

Judgment affirmed.

AYLES v. SOUTHERN RY. CO. et al. (Court of Appeals of Kentucky. Sept. 22, 1905.) REMOVAL OF ACTIONS-DIVERSITY OF CITIZENSHIP-JOINT ACTIONS AGAINST RESIDENTS AND NONRESIDENTS-RIGHT OF REMOVAL TO FEDERAL COURTS.

A complaint in an action against a foreign railway corporation and a domestic corporation and individuals, citizens and residents of Kentucky, brought by a resident and citizen of the state, which alleges that the foreign corporation was the owner of a railroad and its equipments, that the domestic corporation and the individuals were its agents to keep the same in safe condition, and had undertaken to perform such duty, and had assured plaintiff, an engineer, that they had put an engine in good repair, when they knew that it was out of repair, thereby causing injury to plaintiff, states a cause of action jointly against the foreign and domestic corporations and the individuals, and the foreign corporation cannot remove the cause to the federal courts on the ground of diversity of citizenship.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Second Division. "To be officially reported."

Action by George Ayles against the Southern Railway Company and others. From an order removing the action to a federal court, plaintiff appeals. Reversed.

W. M. Smith and B. H. Young, for appellant. Humphrey, Hines & Humphrey, for appellees.

NUNN, J. On the 15th of July, 1904, the appellant filed a petition in the Jefferson circuit court against the appellees, Southern Railway Company, Southern Railway Company in Kentucky, Henry Snyder, and John A. McDermott. He alleged that the Southern Railway Company was a corporation organized under the laws of the state of Virginia; that it owned and operated a railroad, with its equipment, passing through the city of Louisville, the state of Indiana, and on to the city of St. Louis, Mo.; that the Southern Railway Company in Kentucky was a Kentucky corporation; that it had the power and authority to construct, maintain, and operate railroads in and through the city of Louisville, and to construct, operate, and maintain repair shops in that city, both for the cleaning and repairing of its own machinery, engines, and rolling stock, and that of other railroads, and particularly the Southern Railway Company; and at the time named it was so operating its roads and shops, and had entered into and was then under a contract of agreement with the Southern Railway Company by which it contracted and agreed, for a valuable consideration, to inspect, clean, and keep in good repair the machinery, engines, and rolling stock of the Southern Railway Company which might need cleaning, repairing, or overhauling in the city of Louisville, Ky., and the machinery, engines, and rolling stock that was to go out of the city of Louisville, Ky., to the city of St. Louis, Mo., along the route known as the "St. Louis Division of the Southern Railway Company." The petition continued as follows: "That defendants Snyder and McDermott and each of them were on that date and are now residents and citizens of the county of Jefferson and state of Kentucky, and that they and each of them on said date were officers, agents, employés, and servants of the defendant the Southern Railway Company in Kentucky and the Southern Railway Company, and that on said date it was the duty of them and each of them, as such officers, agents, employés, and servants, to inspect, clean, and keep in good repair the machinery, engines, and rolling stock of said Southern Railway Company to be sent over said line from Louisville, Ky., to St. Louis, Mo., and to see that the machinery, engines, and rolling stock of the Southern Railway Company was in good and safe repair and condition before same was permitted to go out over said line, and it was the duty of the said

Snyder and McDermott and each of them, and they had authority, to designate, assign, and direct what particular engineer was to pull any such train so sent out over said line. Plaintiff says that on said date he was in the employ of the Southern Railway Company as engineer, and was then designated, assigned, and directed by said Snyder and McDermott and each of them to pull as such engineer a passenger train so sent out over said line from Louisville, Ky., to Evansville, Ind., along the line of the St. Louis Division of the Southern Railway Company, with engine known as 'No. 2,002,' and that said Snyder and McDermott and each of them then informed and assured plaintiff that said machinery, ergine, and rolling stock of said train had been inspected, cleaned, and repaired, as it was their duty to do, and was in good and safe repair and condition to make said trip. That plaintiff relying on said information and assurances given him by said Snyder and McDermott and each of them, and their superior skill and knowledge, he, as it was his duty to do under his employment, took charge as engineer of said engine and began to pull said train as directed." He then continued, giving the particulars of his injuries and the cause thereof by reason of the defective engine and coupling, and then proceeded as follows: "He charges that said injuries were caused by the joint gross negligence of the Southern Railway Company, said Southern Railway Company in Kentucky, and said Henry Snyder and John A. McDermott, and other of its servants then and there in its employ, as he says that, when they started said engine No. 2,002 and said train of cars over said route, said coupling and the engine and cars were defective, out of repair, and in an unsafe condition, of all of which all of said defendants knew at the time, or could have known by the use of ordinary diligence; but they and all of them failed to inspect, clean, and repair said machinery, engine, and rolling stock, or to put it in a good and safe condition, as it was their duty to do before said train was sent out, and by reason thereof the plaintiff sustained the injuries aforesaid."

On the 29th of the same month the Southern Railway Company, the Virginia corporation, filed its petition, with a bond, and sought to remove the cause to the United States Circuit Court for trial, upon the ground that it and the plaintiff were residents of different states and that the amount in controversy was more than $5,000. It was alleged in the petition for removal that no cause of action was set forth in plaintiff's petition against its co-defendants, Henry Snyder, J. A. McDermott, or the Southern Railway Company in Kentucky, or any of them, and also that the controversy between the plaintiff and the petitioner was a separable one, which was wholly between citizens of different states and could be fully determined as between them without the pres

ence of any of the other defendants. It was further alleged, in substance, that the allegation made by the plaintiff that his injuries were the result of the joint negligence of the petitioner and its codefendants was untrue and was known by the plaintiff to be untrue when he instituted the action, and that he did not expect to prove the allegation, or to obtain a verdict or judgment against any of the petitioner's codefendants, and that his reason for joining its codefendants with the petitioner as defendants was for the sole and only purpose of depriving the petitioner of its rights guaranteed by the Constitution and laws of the United States to remove the action to the United States Circuit Court. Upon the filing of this petition and bond, the court made an order removing the action to the United States Circuit Court, and from this order appellant has appealed.

In the cases of I. C. R. R. Co. v. Jones' Adm'r, 80 S. W. 484, 26 Ky. Law Rep. 31, and Rutherford v. I. C. R. R. Co., 85 S. W. 199, 27 Ky. Law Rep. 397, it was in effect decided that the question of the purpose of one party to avoid the federal court or the other to avoid the state court is immaterial. The averments of the petition for the removal of the cause of action from a state to federal court must be restricted to matters of fact relating to the jurisdiction of the court, and all allegations concerning the merits of the case are superfluous and immaterial. In view of these cases and the authorities therein referred to, the appellee concedes that the last paragraph in its petition does not set forth any cause for removal. The contention of appellee's counsel to uphold the removal by the lower court is based upon the proposition that no cause of action is alleged against any of appellee's codefendants, and in support of this they refer to the case of C., N. O. & T. P. R. R. v. Robertson, 74 S. W. 1061, 25 Ky. Law Rep. 266. Appellee's proposition is correct, if no cause of action were stated in the petition against its codefendants. In the case referred to it was nowhere alleged that Brown was supplied by the master with any other or better tubes than the one actually furnished to appellee, nor that Brown was supplied at all with a shield or shields by the master, so that he could in turn furnish them to the enginemen. His sole duty in this regard was to furnish such tubes and shields as furnished by his master, and it was not alleged or shown in the proof that he was guilty of any wrongful act whatever. In the case at bar it is alleged that the Kentucky corporation, Snyder, and McDermott were the agents and servants of the appellee, the Virginia corporation, the owner of the road and its equipments, and they were its agents and servants whose duty it was, under contract and employment, to clean, repair, and put in good, safe condition its engines, cars, and appli ances, and they had undertaken to perform this duty, and had assured the appellant

that they had put engine No. 2,002 and its appliances in good repair and safe condition, and placed the appellant in charge thereof, when at the time they knew, or by the exercise of ordinary diligence could have known, that the engine and its appliances were not in good repair and safe condition, and that by reason thereof he sustained the injuries complained of. Here the appellee's codefendants had a positive duty to perform, and they failed to perform it, and they misrepresented the facts to appellant, showing, not only negligent acts and omissions on their part, but a positive wrong, for which they and their master are jointly liable; and, under the authority of the case of Chesapeake & Ohio Railroad Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 123 and the many cases therein cited, and other cases which it is unnecessary to cite, appellant's cause of action against the appellee was not separable.

For these reasons the judgment of the lower court is reversed, and the cause remanded for further proceedings consistent herewith.

NEWTON V. NEWTON.

(Court of Appeals of Kentucky. Sept. 21, 1905.) DIVORCE-ALIMONY-EXCESSIVE AMOUNT.

In a suit for divorce, it appeared that the husband was unable to do any manual labor and was dependent for support on his occupation as teacher in colored schools, earning $125 a year. The wife was able to take care of herself by washing and ironing. Two children of the marriage were placed in her custody, and all of the household effects were awarded to her pending the suit. Held, that awarding $400 to the wife as alimony in the decree of divorce was excessive, and should be reduced to $150.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Divorce, §§ 675--680.]

Appeal from Circuit Court, Ohio County. "Not to be officially reported."

Action by R. D. Newton against Dollie Newton. From so much of a judgment of divorce as awards alimony to the defendant, plaintiff appeals. Modified.

C. E. Smith, W. H. Barnes, and S. A Anderson, for appellant.

BARKER, J. The parties to this litigation are negroes, who, prior to the judgment of the trial court divorcing them from the bonds of matrimony, were husband and wife. The judgment of divorce awards the wife alimony in the sum of $400, payable in installments at stipulated times until the whole is paid, and, in case of default by the husband, the wife is entitled to execution for the sums due. The judgment also awards the wife's attorney a fee of $25, to be paid by the husband. To reverse this judgment, in so far as the alimony is concerned, the husband prosecutes this appeal.

The evidence shows, without contradiction, that appellant has been a cripple all of his life, and has never been able to walk with.

out the aid of crutches; that he is unable to do any manual labor; that he is entirely dependent upon his occupation as a teacher in colored schools for support, making about $25 per month for five months in the year, and has no other means or property by which to maintain himself. The wife appears to be able to take care of herself by washing and ironing. Two little girls, the fruit of the marriage, are in the custody and control of the mother. All of the household effects were awarded to the wife, by order of court, pending the litigation. It seems to us that under all the circumstances of this case, the judgment is excessive. The wife is as able to earn money as is the husband, and can, perhaps, make more in the year than he. Neither has anything, except the ability to work.

In the case of Fletcher v. Fletcher, 54 S. W. 953, 21 Ky. Law Rep. 1302, the husband was a small farmer, worth, perhaps, $300 after payment of his debts. The judgment awarded the wife as alimony the sum of $400, with an attorney's fee of $100. On appeal this court said: "The judgment against the husband, outside of the cost of the action, which must be considerable from the size of the record, is for more than his entire estate, and, including the allowance to the attorney, as well as the cost, must be nearly double the amount he is worth. We know of no case in which such a judgment has been sustained where the husband was without an income. He turned over to his wife all the household and kitchen furniture, and under all the facts of the case we think an allowance to the wife of $150 outside of this is as much as should be allowed." The substantial facts in the case cited are not materially different from those in the case at bar, and upon the authority of the former adjudication we think $150 is as much as the appellee should have received.

Wherefore the judgment is reversed, with directions that a judgment be entered in accordance herewith.

PHOENIX BREWING CO.'S ASSIGNEE et al. v. CENTRAL CONSUMERS' CO. (Court of Appeals of Kentucky. Sept. 20, 1905.) 1. ASSIGNMENT FOR THE BENEFIT OF CREDITORS-PAYMENTS ΤΟ MORTGAGE CREDITORS FROM PROFITS-RIGHTS OF GENERAL CREDIT

ORS.

A mortgage securing corporate bonds provided that on default the trustee in the mortgage might take possession of the property and apply the profits thereof to the debt. The assignee of the mortgagor for the benefit of creditors continued in possession of the property, and under orders of the court paid the profits to the trustee, who had consented to the setting aside of a judgment for the foreclosure of the mortgage, with a direction of a sale of the property. Held, that the bondholders were not required to account for the profits, in order to share in the proceeds of a sale of the property, though the orders directing their payment stipulated that the payment should be made without prejudice to the rights of any creditor.

HOBSON, C. J. The Phoenix Brewing Company made an assignment for the benefit of its creditors on October 4, 1897. It then owned and operated a large brewery in Louisville. The assignee immediately instituted an action in the Jefferson circuit court against the company and its creditors for the direction of the court in the settlement of his trust, and was directed to continue the operation of the brewery, which he did until the property was sold under the judgment of court in October, 1901. The brewery property, when turned over to the assignee, was incumbered by back city taxes amounting to a considerable sum, and in addition by a mortgage to secure three series of bonds, one for $50,000, and two others of $100,000 each. The company had previously made two other mortgages, one for $50,000 and one for $100,000, and the first two classes of bonds in the last mortgage were to take the place of the bonds in the two existing mortgages. On December 11, 1897, the trustee under the mortgage filed his answer and cross-petition, setting up his mortgage and asserting a right to the rents and profits from the operation of the brewery. On June 20, 1898, a judgment was entered enforcing the mortgage and directing a sale of the property; but on June 1, 1899, this judgment was by consent set aside and held for naught, and so it need not be further noticed. During the progress of the case, on the 9th of December, 1898, the assignee filed an amended petition, asking advice, in which he set up that it would be ruinous to the creditors to sell the property at that time, and alleged that none of the creditors, except the first mortgage bondholders, were desirous of making the sale for that reason, and that these bondholders were willing to defer the sale indefinitely, if the past-due interest was paid. He also alleged that there was an accumulation of state and city taxes which might be settled at less than their face, and thus stop the further accumulation of interest and penalties. He also showed that he had

on hand the sum of about $15,000, which he had made in the operation of the plant. On the same day the court ordered him to compromise and settle the taxes on the best terms he could secure, and to pay the past-due coupons of the first mortgage bonds, "without prejudice to the rights of any of the creditors of the Phoenix Brewing Company in and to the fund in the hands of the plaintiff, which rights shall hereafter be determined and protected, out of the proceeds of sale of the property assigned to plaintiff." From time to time similar orders were made as to the payment of the interest on the first mortgage bonds; the other orders providing that they should be "without prejudice to the rights of any other creditor of the Phoenix Brewing Company which may be hereafter asserted." On May 1, 1900, a judgment was entered for the sale of the property, which was held, and the sale was confirmed on November 2, 1901. After the sale was confirmed this controversy arose between the first mortgage bondholders and the other creditors as to the interest which had been paid them by the assignee out of the earnings of the plant while in his hands, and as to the taxes which he had paid under the orders of court above referred to. It is insisted for the other creditors that the first mortgage bondholders had no lien upon the earnings of the plant in the hands of the assignee, and that, the moneys earned by the assignee having been paid to them under the orders above referred to without prejudice, they should be made to account for it before receiving anything further from the proceeds of the sale. The circuit court held otherwise, and the assignee and general creditors appeal.

It is evident from the orders, as well as from the report of the assignee, that the first mortgage bondholders waited, and that by their waiting a sale of the property at a ruinous sacrifice was averted. It is also reasonably apparent that they thought that they were getting their interest by waiting. In fact, the payment of the interest would seem to have been the consideration of the indulgence on their part. But, however this may be, in all the mortgages it was provided that upon the default of the mortgagor to pay the debt the mortgagees might take possession of the property and apply the rents and profits to their debt. When the property was in the hands of the court, and the court directed the assignee to continue the operation of the plant, and also directed him to pay the first mortgage bondholders their pastdue interest out of the earnings, they were not required to take further affirmative steps themselves to secure the rents and profits, if they were satisfied with what the court ordered the assignee to pay them. It is evident that they had a right to believe that for their indulgence they were to get their interest, and that they were not required to take other action to secure themselves. They

got nothing they were not entitled to under the mortgage, and the mere fact that they did not apply for a receiver under the circumstances cannot prejudice their claim; for the conduct of all the parties was certainly calculated to make them understand that this was unnecessary. When the court came at the end of the litigation to determine the rights of the parties, he had a right to look to the real merits of their claims. The original judgment, having been by consent set aside, was not a bar to the merits of the claim being considered, and the second judg ment must be read in connection with the previous orders in the case under which the money had been paid to the first mortgage bondholders. The bondholders in their original cross-petition had set up their right to the rents and profits, and the court upon final hearing might consider the whole case, because, if the orders mean that the payments are without prejudice to the court's settling the rights of the parties on final hearing, they must necessarily mean that the court was then to hear all the facts and determine the matter on the merits.

As to the taxes, the assignee received a large amount of personal property when he took charge. Under the law it was subject to the taxes before the real estate could be subjected, and therefore the order of the court directing him to pay the taxes out of the funds in his hands, which had accrued from this personal property in a large measure, was proper.

Judgment affirmed.

CAREY v. W. B. SAMUELS & CO. (Court of Appeals of Kentucky. Sept. 20, 1905.) 1. MASTER AND SERVANT-INJURY TO SERVANT -ASSUMPTION OF RISK.

An experienced machinist, skilled in the work, repaired, set up, and operated a mill. While testing the work of the mill, his hand was caught in rollers and injured. He could have made the required test without risk, and he admitted that the manner of making the test as he did was dangerous. Held, as a matter of law, that he assumed the risk.

[Ed. Note. For cases in point, see vol. 34. Cent. Dig. Master and Servant, §§ 651, 692, 785.] 2. SAME-INJURY TO SERVANT-NEGLIGEnce.

Where a skilled machinist knew that the danger he encountered in testing the work of a mill was increased by want of sufficient light, but there was no less light in the millroom when he was injured than when he repaired, set up, and put the mill in operation, the absence of sufficient light was not evidence of actionable negligence on the master's part, but imposed on the servant the duty of exercising greater care.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 179, 200.] Appeal from Circuit Court, Nelson County. "Not to be officially reported."

Action by F. P. Carey against W. B. Samuels & Co. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

Nat W. Halstead and Morgan Yewell, for appellant. Eli H. Brown, Jr., and O'Neal & O'Neal, for appellee.