Varona a. Socarras.

tion, greater latitude should be permitted upon his cross-examination than in cases where the witness has no interest in the controversy; and that the court should not interfere where a party is being examined, to prevent any inquiry which may tend to show him guilty of specific acts of immorality or bad conduct, so as to render him in some degree unworthy of credit, and tend to create in the minds of the jury a doubt as to the truth of his statements.

To all this, it is a sufficient answer to say, that the statute has allowed parties to be witnesses, and their testimony must be controverted or impeached in the same manner as other witnesses; and there is no hardship in adhering to these longsettled rules, applicable alike to all cases. It was the privilege of the defendant to be himself sworn, and he might have contradicted any of the facts as testified to by the plaintiff; and because he chose to shrink from any such test, was no reason for permitting him to put improper and useless questions to his adversary.

As to the inquiries respecting payments made by the defendant's son, or the manner in which the son kept an account of the notes purchased by him on his individual account, I have, as yet, been unable to see their relevancy to the issues which were presented at the trial for the determination of the jury; or how any answers to them would tend to show whether or not the defendant received from the plaintiff certain promissory notes, the proceeds of which were to be applied, when received by the defendant, upon an indebtedness of the plaintiff to him.

This was the material issue in the case, and if found adverse to the defendant, the plaintiff would undoubtedly be entitled to recover the amount received by the defendant, over and above the indebtedness.

The questions, I still think, were immaterial, and my ruling upon them at the trial appears to be correct.

The remaining exceptions, which are to the admission of evidence, constitute no ground for granting the defendant's motion for a new trial. The testimony was relevant, and explanatory of previous evidence in the case.

Finally, upon a careful review of the whole case, there seems to exist no reason for disturbing the finding of the jury.

Two trials have been already had between the parties, and

Fairchild a. Durand.

each has resulted in a verdict for the plaintiff, for the amount claimed by him.

Under such circumstances there should exist something more than a conflict of evidence to justify, upon a motion of this kind, an inquiry into the equities of a claim, upon the mere assertion of a party that they rest with him.

Motion for a new trial denied, with $10 costs.

FAIRCHILD ɑ. DURAND.

New York Superior Court; Special Term, April, 1859. REMOVAL OF CAUSES.*. -PROCEEDINGS AGAINST JOINT DEBTORS.

Where there are several defendants, real parties in interest, each of them must be a resident of a different State from that of the plaintiff, to entitle a defendant to have the cause removed to a Federal court.

The plaintiff, a resident of this State, sued in a State court three defendants, of whom one was also a resident of this State, and the other two were residents of other States. The action was upon a joint indebtedness, and upon service of summons on the resident defendant alone, the plaintiff obtained judgment against all, and afterwards served the other defendants with summons to show cause why they should not be bound by the judgment.

Held, that the defendants so served were not entitled to have the cause removed into a Federal court on ground of their residence. Such proceeding is not a new action against only the defendants so served, but a further proceeding in the old action.

*In the case of DISBROW a. DRIGGS (New York Superior Court; Special Term, September, 1858), the practice respecting the removal of causes from State to Federal courts was discussed on an application made in that cause for its removal to the United States Circuit, and the following opinion was rendered.

HOFFMAN, J.-1. The agreement of the plaintiff and his attorney, made upon the application of the defendant, as well as his attorney, that the defendant have further time to answer, there being no notice of appearance given, nor any other step taken on the part of the defendant, is not the entering of an appearance, so as to preclude the application to remove the cause under the act of Congress. (5 Duer, 605; 3 lb., 686.)

2. It is settled in our State, that a notice of retainer given by an attorney for the defendant does not prevent the application (cases cited, Ib.)

VOL. VIII-20

Fairchild a. Durand.

Application to remove the cause to the Circuit Court of the United States.

The facts are stated in the opinion.

Mr. Curtis, for the motion.

Mr. Nicholls, opposed.

HOFFMAN, J.-The defendants, Charles Durand, George Rice,

3. The State court is to be satisfied of two things: first, the alienage or citizenship in another State of the petitioner; next, that the sum in dispute exceeds five hundred dollars. It is true that the language appears to refer to the latter fact only, but the true interpretation must be, that both facts, the establishment of which renders it the duty of the State court to make the order, are to be made out to its satisfaction.

4. The mode of satisfying the court is not prescribed or indicated. As to the sum in dispute, the Court of Common Pleas, in Kanouse a. Martin, received an affidavit of the plaintiff as to what was demanded, and Chief-justice Bronson approved of the course, and adopted the conclusion. But the court in that case permitted the declaration to be amended after a petition to remove had been presented, reducing the damages below $500, and this was held by the Supreme Court of the United States to be error. (15 How. (U. S.) R., 257, 1853.)

A similar course had been taken in a case in Massachusetts, to that pursued in Kanouse a. Martin, in New York. (Ladd a. Tudor, 3 Min. & W., 328, 1847.) Whether it would be justified under the decision in 15 Howard, may admit of doubt. The rule then is settled, that the demand of the plaintiff in his declaration decides the sum in dispute.

But in cases where this test is not applicable, the mode of satisfying the court must be open to its own course of proceeding in ascertaining facts. No doubt the ordinary and general mode would be by affidavits. Under our system, a reference could be had, I think, in a proper case of difficulty, under section 271 of the Code.

5. These observations apply equally to the other fact to be made out, viz., citizenship or alienage. In the case of Ladd a. Tudor, before cited, the learned judge noticed the sworn petition as the first piece of testimony of a residence in New Hampshire; next, that the plaintiff had in his writ described the defendant only as commorant in Massachusetts; and lastly, observed that the plaintiff had not denied the allegation of the petition in any affidavit. I do not doubt, that the fact of citizenship is a fact which may be traversed, and if traversed, is to be inquired into and passed upon by the court, in one or other of its methods of ascertaining facts.

6. These and other considerations have led to the adoption of the rule in this court, not to grant an order of removal without notice, or on order to show

cause.

In the present case, I am satisfied, upon the affidavits, that the residence and citizenship of the defendant elsewhere are made out.

Fairchild a. Durand.

and George H. Bartholomew were partners under the firm-name of Charles Durand & Co. They gave their promissory notes to the plaintiff, on which the action was brought. The summons was served on Bartholomew, on the 6th of June, 1856, and on the 23d of that month, copies of the summons were delivered to the sheriff of the county of New York to be served on the other defendants, but they could not be served on account of their absence. On the 2d of July, 1856, judgment was entered against Bartholomew for want of an answer, a transcript filed, execution issued with directions to levy on property of the defendants held jointly. Bartholomew was a resident of the city of New York when served, and is now a resident of Westchester county in this State. On the 6th of August, 1856, a summons was delivered to the sheriff for service, requiring the other defendants to show cause why they should not be bound by the judgment. This could not be served. On the 5th of January, 1859, a similar summons was issued, which was served upon the defendant Durand on the 22d of April, 1859.

The defendant Durand now presents his petition, entitling the action as against himself and Rice only, to have the action removed, setting forth the service upon him of the summons on the 22d of April; and that the plaintiffs are inhabitants of the State of New York, and of the southern district of that State, and the defendant Rice is an inhabitant and citizen of the State of Illinois, and resides at Chicago; and he, the defendant Durand, is an inhabitant and citizen of the State of Connecticut, and resides at New Haven in that State; that the matter in dispute exceeds the sum of $500, &c. He enters his appearance, and gives his bond as prescribed.

The rule stated by the plaintiff's counsel appears to be fully settled in the courts of the United States, that if there are several defendants, real parties in interest, each of them must be a resident of a different State from that of the residence of the plaintiff, to authorize a removal. (Commercial Bank a. Slocomb, 14 Peters, 60; Wilson a. Blodget, 4 McLean, 363; Ward a. Arredondo, 1 Paine's C. C. R., 410.) Hence, it is clear, that if the cause was now proceeding against all the defendants, without any judgment against Bartholomew, it could not be removed.

Fairchild a. Durand.

Section 375 of the Code is, "that when a judgment shall be recovered against one or more of several persons jointly indebted upon a contract, by proceeding as provided in section 136, those who were not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.

"Section 136 directs, that if the action be against defendants jointly indebted upon contract, the plaintiff may proceed against the defendant served (unless the court otherwise direct); and if he recovers judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served, and if they are subject to arrest, against the persons of the defendants served."

Section 377 of the Code prescribes the form of the summons and time to show cause, under sections 375 and 376, and that it is to be served in the like manner as the original summous. Section 379 directs that the party summoned may answer, denying the judgment, or setting up any defence which may have arisen subsequently; and in addition thereto, if he be proceeded against according to section 375, he may make the same defence which he might originally have made to the action, except the statute of limitations.

The case of Oakley a. Aspinwall arose under the joint debtor act of 1830, and was first before the Superior Court in May, 1848. The result now seems to be, that a judgment against one of two joint debtors, the other not being served with process, is no evidence of the liability of the latter. The essential nature of the demand is not changed by such a judgment as against the party not served. (3 Kern., 500.)

Yet Mr. Justice Bosworth in the same case, Oakley a. Aspinwall (1 Duer, 48), pursues a line of reasoning showing, I think, conclusively, that under the sections of the Code now in question, the judgment is evidence presumptive at least of the liability, although every defence except the statute of limitations may be set up affirmatively by the party newly brought before the court. In truth, the rule as expressed by Chief-justice Bronson in Bruen a. Bokee (4 Den., 56), is the true interpretation of these provisions: "The plaintiff may sue on the judg