its road, and had never authorized its superintendent to permit the use of its road for that purpose, but that its sole business was that of logging. The bill of exceptions shows that Hickey, the superintendent, had the general charge and management of the defendant's woods, logging camps, and logging railroad. He had authority to, and did, employ the men who worked for the company in the redwoods. The superintendent, so clothed with such power by the defendant, and so in the control and management of its road, engaged the plaintiff's intestate to work in the logging camps. There is evidence that he instructed him to get upon the cars, and to go down the defendant's road, for the purpose of getting his blankets, and to return the next day. The defendant cannot be heard to say, in the absence of notice to the contrary, that its general superintendent had not the powers usually incident to his office. Such an officer, in the management of such property, controls the coming and going of the trains, the method of their operation, and ordinarily decides who shall or shall not ride upon them. There was evidence that the company had notice of the fact that its trains had been used in carrying people up and down its road. There is no evidence that it had taken any means to prohibit such use. of its property. The deceased was in search of work, and for that purpose applied to the defendant's superintendent, and was by the defendant, through such superintendent, hired to work. He was, by the duly authorized agent of the defendant, invited to get upon the train upon which he received his injury. The case is widely different in principle from the cases cited by the plaintiff in error, of which those most relied upon were Duff v. Railroad Co., 91 Pa. St. 458; Hoar v. Railroad Co., 70 Me. 65; and Morris v. Brown, 111 N. Y. 318, 18 N. E. 722. In Duff v. Railroad Co. the injured person had habitually ridden upon the train without paying fare, in violation of the company's regulations, but with the connivance of the conductor. The court said: "This is the case of a mere trespasser, and the company owed him no duty." In Hoar v. Railroad Co. it was held that, if the defendant company were not a common carrier, a section foreman with his hand car had no right to impose upon it the onerous responsibilities arising from that relation; that he had "no right to accept passengers for transportation, and bind the company for their safe carriage, and every man may safely be presumed to know thus much." In Morris v. Brown the defendants were contractors for the excavation of a tunnel. The plaintiff's intestate was a civil engineer, whose duty it was to inspect their work. In so doing, he entered the tunnel on dump cars, which were operated to remove débris, and were not intended to take persons into the tunnel, or fitted for that purpose. There was no obstruction in the way of the engineer's inspecting the work on foot. He had ridden on the dump cars with the permission of the brakeman, but not with the knowledge of the defendants, and there was no proof that the brakeman had authority to give such permission. Upon these facts, it was held that the defendants were not liable for an accident occurring through the brakeman's negligence.

The

It is further contended that the court should have instructed the jury to return a verdict for the defendant, on the ground that the negligence of the deceased was proven to have contributed to his injury. Such contributory negligence is said to consist in the fact that the plaintiff rode in a dangerous place upon the car. evidence upon this point was conflicting. The conductor testified that the place where the deceased was riding was as safe as it would have been elsewhere, and it appeared that the conductor and brakeman both rode there. In view of such testimony, there can be no doubt that the question of the contributory negligence of the plaintiff's intestate was properly left to the jury.

The judgment is affirmed, with costs to the defendant in error.

SALISBURY v. BENNETT,

(Circuit Court, S. D. New York. March 10, 1896.)

1. PRACTICE-LEAVE TO INTERPOSE DEFENSE-DISCRETION.

When application is made to the favor of a court, for leave to interpose a defense, and the application is one resting in discretion, all the circumstances of the case will be considered, and care taken not to sanction any such abuse of procedure as would shock the conscience.

B. SAME-STATUTE OF LIMITATIONS.

On November 17, 1892, defendant, the proprietor of a newspaper, published an article claimed by plaintiff to be a libel upon him. The limitation fixed by the local statute for actions for libel was two years. More than five months before the expiration of such period, plaintiff delivered a summons in an action for libel to the United States marshal, for service, but the marshal was unable to make service, because the defendant had previously left the United States, and continued to sojourn abroad, though maintaining his domicile and legal residence within the state. The local statutes provided no means by which an effectual service, other than personal service, could be made. The defendant continued to sojourn abroad until after the expiration of the period of limitation, but after the passage of an amendment to the local statute, permitting attachments in actions for libel, he voluntarily appeared in the action, and answered, but did not plead the statute of limitations, for the reason that under the prevailing interpretation of the statute, his counsel supposed that the period of his sojourn abroad would not be counted as part of the period of limitation, though his residence continued within the state. A decision of the state court of last resort having given a contrary interpretation to the statute, defendant applied for leave to amend his answer by setting up the statute. Held that, even if the state court's interpretation of the statute should be adopted by the federal court, it would be so grossly inequitable to permit defendant so to defeat the plaintiff's action that his application for relief to amend should, in the exercise of discretion, be denied.

Taylor, Thompson & Kaufman, for plaintiff.
John Townshend, for defendant.

LACOMBE, Circuit Judge. This is a motion for leave to amend the answer by setting up the statute of limitations. The action is for libel, and the limitation is two years. Code Civ. Proc. N. Y. § 384. The defense was not interposed when the answer was served, for the reason that, under the decisions of the state courts

as they then stood, defendant's counsel assumed that it was a defense which he could not establish. The recent decision of the state court of appeals in Hart v. Kip, 148 N. Y. 306, 42 N. E. 712, reversing same case, 74 Hun, 412, 26 N. Y. Supp. 522, and construing section 401 of the Code, however, has led him to believe that such defense can be established, and he now asks leave to set it up.

This section 401 provides that:

"If, after a cause of action has accrued against the person, he departs from and resides without the state, and remains continuously absent therefrom for the space of one year or more, * * the time of his absence

not a part of the time limited for the commencement of the action."

is

The court of appeals held in Hart v. Kip that, when a person retains his residence and domicile in this country, continuous absence as a mere sojourner in another country or in many countries, no matter how prolonged, will not suspend the running of the statute of limitations under this section.

The facts of this case are as follows: The libel was published in defendant's newspaper on November 27, 1892, on which day the cause of action arose. On May 13, 1893, the defendant left this port for Europe, where he has sojourned continuously ever since, still, however, retaining his legal residence and domicile in this city. On June 14, 1894, more than five months before the expiration of two years after the cause of action arose, plaintiff placed the summons and complaint in the hands of the United States marshal for service. As the plaintiff was by that time in Europe, personal service of the summons could not be effected. Nor could he be served under section 435, which provides for substituted service upon a resident, for, under the decisions, that section does not apply where defendant's residence outside of the state is known. Nor could plaintiff proceed by publication, because the case was not one in which an attachment could be obtained; and, if defendant did not voluntarily appear, judgment by default could not have been entered against him upon proof of service by publication. Code, §§ 428, 635, 1216, 1217. Defendant's act, therefore, in departing from the state, and remaining absent therefrom, effectually prevented plaintiff from beginning his action. On September 1, 1895, nearly three years after the cause of action accrued, an amendment of the Code extended the provisions of section 635 as to the issue and levy of attachments, for the first time extending that provisional remedy to a case such as this, where the action is to recover a sum of money only, as damages for an injury to person or property in consequence of negligence, fraud, or other wrongful act. Thereupon defendant voluntarily appeared in the action by his attorney, and served an answer, November 29, 1895.

The old rule which discriminated against the defense of the statute of limitations per se as unmeritorious, and not entitled to the same consideration as other defenses, is no longer as strictly enforced as it once was. McQueen v. Babcock, 3 Abb. Dec. 132; Arnold v. Chesebrough, 33 Fed. 571. The excuse given for not pleading this defense originally is a reasonable one. It was hardly

to be supposed that section 401 would be so construed as defendant now contends it has been. Nevertheless, when application is made to the favor of a court for leave to interpose any defense, and the application is one resting in discretion, all the circumstances of the case will be considered, and care taken not to sanction any such abuse of procedure as would shock the conscience. If de fendant correctly interprets the decision in Hart v. Kip, the plaintiff's cause of action was barred by the statute November 28, 1894, although the only reason why he was unable to commence his action five months before by personal service of the summons was because defendant left the country, and has ever since remained continuously absent therefrom. Nay, under such a construction of section 401, it would (except for the amendment of 1895) be possible for one person, by negligence, fraud, or other wrongful act, to injure another, and then, by going abroad the same day, and sojourning there for two years, escape all liability to respond in a civil action for the wrong.

Whether or not the decision in Hart v. Kip does so construe the section is a point upon which no opinion is here expressed. It will be noted that in that case, although defendant was absent, he, to plaintiff's knowledge, had property here, and the cause of action was such that plaintiff could at any time during the six years have begun suit with a warrant of attachment. If, however, the deci sion in Hart v. Kip does require the state courts to construe section 401 in the way defendant contends, it does not necessarily follow that the federal practice would be conformed thereto. Section 914 of the United States Revised Statutes simply undertakes to conform the federal practice to the state model, "as near as may be," not as near as may be possible, nor as near as may be practicable. The United States supreme court has declared that it remains still with the federal judges to construe, and, in a proper case, reject, any subordinate provision in such statutes as would unwisely incumber the administration of the law, or tend to de feat the ends of justice in their tribunals. Railroad v. Horst, 93 U. S. 300.

Defendant, therefore, would probably gain nothing by his amendment if it were allowed; and, if the converse were true, it would be so grossly inequitable to permit him thus to defeat the plaintiff's claim that his application should be denied.

HUKILL V. MAYSVILLE & B. S. R. CO. et al.
(Circuit Court, D. Kentucky.)

L PRACTICE-VOLUNTARY DISMISSAL-NEW ACTION.
The plaintiff's voluntary dismissal of an action for a tort, as against
some of the defendants, not on the merits, is not a bar to a subsequent
action by such plaintiff against the same defendants.

& REMOVAL OF CAUSES - DIVERSE CITIZENSHIP

PARTIES.

FRAUDULENT JOINDER OF

In order to justify the removal to a federal court of a suit in which some of the defendants are citizens of the same state as the plaintiff,

on the ground that such defendants have been fraudulently joined to defeat the jurisdiction of the federal court, it must appear, not only that they were joined for that purpose, but that no cause of action is stated against them, or that they are in law improperly joined, or that the averments of fact on which a joint liability is asserted are so palpably untrue or unfounded as to make it improbable that the plaintiff could have inserted them in good faith.

3. RAILROAD COMPANIES-UNAUTHORIZED LEASES-LIABILITY FOR NEGLIGENCE. Where a railway company leases its line, without authority of law, though the lease is void, a servant of the lessee company, whose rights depend only upon contract, and not upon any public duty, cannot recover against the lessor company for injuries sustained through the negligence of the lessee in the operation of the road.

4. MASTER AND SERVANT-LIABILITY FOR TORTS-Joint and Several LIABILITIES.

When a master becomes liable to his servant for a failure to discharge his implied contractual obligation to furnish a reasonably safe place for such servant to work, caused by the personal and affirmative act of another servant, in which no concert of the master is alleged, the liability of the master and of the delinquent servant to the injured party is not joint, but several. Warax v. Railway Co., 72 Fed. 637, reaffirmed.

This case was heard or a motion to remand to the state court.

On the 12th day of January, 1895, the plaintiff filed his petition in the Kenton circuit court, at Independence, Ky., against the Maysville & Big Sandy Railroad Company, Chesapeake & Ohio Railway Company, C. E. Acra, George Shumate, Henry Thien, John Shappart, and W. E. Gaynor, defendants, in the following words:

"Defendant the Maysville & Big Sandy Railroad Company is, and at the time hereinafter stated was, a corporation owning a railroad extending into the county of Kenton, and railway tracks, workshops, roundhouse, railway yard, and other appurtenances in said county. Defendant the Chesapeake & Ohio Railway Company is, and at the times hereinafter stated was, a foreign corporation, and possessed, used, and operated said railroad, railway tracks, workshops, roundhouse, railway yard, and other appurtenances under a lease from said the Maysville & Big Sandy Railroad Company, which lease was made without legislative or other authority; and said the Chesapeake & Ohio Railway Company now so operates said railway. On the night of April 28, 1894, L. A. Hukill was the servant of said the Chesapeake & Ohio Railway Company, employed by it as one of the crew of a switching locomotive engine in the yard of said railroad in Kenton county; and while said Hukill was then and there, as such servant, at work upon and about a train of freight cars of said the Chesapeake & Ohio Railway Company, in said yard, and on said railway, he was, by reason of gross and wanton negligence of all the defendants, struck by a board projecting from the roof of one of another train of freight cars of said the Chesapeake & Ohio Railway Company, then and there in the possession, custody, and control of said corporation, and on another and adjoining track of said railroad, and thereby said Hukill was violently knocked under the train of cars upon and about which he was at work, and was run upon and over by said train, and thereby, and by being so knocked from said car, he was so injured in his person that he soon thereafter died thereof. Said projecting board was part of the roof of said car. from which the same projected. Said projecting board was, and long before said decedent was injured as aforesaid had been, a defect in said car, from which it projected, that endangered the bodies and lives of said decedent and other servants of said the Chesapeake & Ohio Railway Company. Said car, with said board so projecting therefrom, was, in said defective, unsafe, and dangerous condition, by the defendants, with gross and wanton negligence, placed where the same was when said decedent, Hukill, was struck by said board as aforesaid. With gross and wants negligence, all the defendants permitted said defective car to remain where the same was, in its said defective, unsafe, and dangerous condition, until said decedent was injured