Richmond. GEORGE &als. v. PILCHER & als. March 29. Absent, Anderson, J. 1. The plaintiff in a suit of interpleader continues to be a substantial and necessary party until he has fully rendered the debt, duty or other thing required of him. 2. P filed a bill of interpleader in the circuit court of Richmond against various persons, made parties defendants, of whom some were citizens and residents of Virginia, others of Pennsylvania, and others of states other than either Virginia or Pennsylvania. The defendants, who were citizens and residents of Pennsylvania, answered the bill, and at the same time filed their petition in due form for the removal of the cause from the state to the Federal court-HELD: Whether P is regarded as a substantial or as a mere nominal party, there is no right of removal either under the act of congress of March 2, 1867, or of July 27, 1866. 3. Upon the trial of an issue directed in the said suit, a deposition of one M, who was then dead, was offered, whereby it was sought to show that L, one of the defendants, in the presence of W, another of the defendants, had, in an interview at Richmond, made to M certain admissions material to the issue. These two defendants were strangers to the witness, and on cross-examination describing them he said: "They were not black negroes. I think the brother-in-law had the lightest skin of the two. I think they were not bright mulattoes, but dark mulattoes." It was proved by other witnesses that the brother-in-law spoken of (W) was a white man, and that L was so bright that he could hardly be distinguished from a white man. It was further proved that about the time at which the witness said he had the interview with the two men they were both in Richmond inquiring for him. Upon an objection to the reading of the deposition on the ground that the witness did not sufficiently identify the persons whose admissions were sought to be proved by him, it was held that 1877. March Term. 1877. March Term. George & als. V. Pilcher & als. the evidence was prima facie sufficient to authorize the deposition to go to the jury. 4. On trials, before a jury, when the evidence on both sides has been closed, and the argument has commenced, as a general rule no fur ther evidence should be received from either party; but the presiding judge, in the exercise of a sound discretion, may relax the rule and admit additional evidence, if the nature of the case and the ends of justice require it; but if the introduction of such additional evidence take the adverse party by surprise, he should be allowed time and opportunity if desired, to meet it with further evidence on his side. 5. Whenever the character of a witness for truth is attacked, either by direct evidence of want of truth, or by cross-examination, or by proof of contradictory statements in regard to material facts, or by disproving by other witnesses material facts stated by him, or, in general, whenever his character for truth is impeached in any way known to the law, the party calling him may sustain him by evidence of his general reputation for truth. The case is stated by Judge Burks in his opinion. Ould, White and Shippen, for the appellants. C. Robinson, Jones and Crump, for the appellees. BURKS, J., delivered the opinion of the court. William O. George, a citizen of Virginia and resident of the city of Richmond, died in said city intestate on the 16th day of August, 1869. At the time of his death, he was possessed of some personal estate, and was the owner of real estate supposed to be worth from sixty to seventy-five thousand dollars. Caroline Jackson, a negro and former slave of William O. George, was the mother of two children, Lee and Adelaide, of whom the said William O. George was the father. He removed the mother and her two children to the city of Philadelphia in the year 1854 or 1855, where they have ever since resided. 1877. March George & als. In a very short time after the death of William O. George, the woman Caroline and her two children, Term. her daughter, Adelaide, having intermarried in Philadelphia with one Constant C. Willamin, set up a claim to the estate of William O. George, based on an alleged marriage of the said William O. George and the said Caroline in the city of Philadelphia on the 21st day of April, 1869. The claim was disputed by Dr. Miles George, a half-brother, and others, descendants of another halfbrother, and half-sister of the decedent, who denied that any such marriage had ever taken place, or if it had, that it conferred any title under the laws of Virginia, to the real estate of the decedent in Virginia, and they claimed to be the only heirs at law and distributees of the decedent. John M. Pilcher, a tenant of William O. George at the time of his death, was indebted for rents, some of which were due at the death of said decedent, some fell due after his death, and another portion was payable at a future day. To recover, the rents in arrear, Lee George, who had become the administrator of the personal estate of the decedent, sued out a distress warrant against Pilcher and levied it on his goods and chattels; and thereupon Pilcher filed his bill in the circuit court of the city of Richmond against the rival claimants of the estate of William O. George, praying that they might be required to interplead and have their claims settled by the court, and offering to abide the judgment of the court touching the rent owing by him; he further prayed an injunction to stay all further proceedings on the distress warrant. The injunction was granted, and an order made directing the parties to interplead and assert their respective claims. V. Pilcher & als. 1877. March Term. George & als. V. Pilcher & als. Caroline George, Lee George, and Willamin and wife at once filed their answers to the plaintiff's bill, asserting their claim, which has been before stated, and at the same time filed a petition for the removal of the cause into the circuit court of the United States. The motion for removal was resisted by the other defendants, and was overruled. The other defendants did not file their answer until the 11th day of November, 1873, after all the depositions had been taken in the case. In their answer they set up the claim on their part before stated, and controverted the claim of the other defendants. Whereupon the court directed the parties, the said Caroline George and the other Pennsylvania claimants, as plaintiffs on the one side, and the other parties as defendants on the other side, to proceed to trial before a jury on the following issue: "Whether the ceremony of marriage was duly solemnized between the said William O. George and the said Caroline, in the city of Philadelphia, in the state of Pennsylvania, on the 21st day of April 1869." The trial was had as ordered, and resulted in a verdict for the defendants in the issue. The plaintiffs moved to set aside the verdict, upon the ground that it was contrary to the evidence; which motion was overruled; and they excepted. Other bills of exceptions were taken to rulings of the court in the progress of the trial, which will be noticed further on. The chancellor entered a decree approving the verdict of the jury, and, adjudging that the alleged marriage did not take place; that Miles George and the other defendants in the issue were the lawful heirs of William O. George, deceased, and ordered payment of the rents to them. An appeal from this decree, al lowed to Caroline George and the other plaintiffs in the issue, brings the case here for review. The first error assigned is the refusal of the court below to order the removal of the cause into the circuit court of the United States. The petition for removal was filed under the second section of the act of congress approved March 2, 1867. 14 Stat. at Large 558. An affidavit was filed according to the provisions of said act. The petition recited the affidavit, stated the cause relied upon for the removal, and was otherwise regular. The record shows, that some of the defendants not uniting in the petition were also non-residents. On motions for removal of two causes made in this court at the August term 1872, it was held, that where there are several plaintiffs in a suit in a state court, some of whom reside in the state and some out of it, and all of the defendants reside in the state, the nonresident plaintiffs are not entitled to have the suit removed into the United States court under the act aforesaid. Beery & als. v. Irick & als. and Newton's ex'or v. Bushong & als., 22 Gratt. 484. Afterwards, at the October term 1873 of the supreme court of the United States, in a case which was the converse of the case in 22 Gratt. supra, that court held, that where the plaintiff and one of the defendants in a suit were residents of the state in which the suit was brought, and the other two defendants were non-residents, the non-resident defendants were not entitled to have the case removed under said act. Case of Sewing Machine Companies, 18 Wall. U. S. R. 553. Mr. Justice Clifford, in the conclusion of the opinion of the court delivered by him, says: "Either the non-resident plaintiff or non-resident defendant may 1877. March Term. George & als. V. Pilcher & als. |