Varona a. Socarras.

tice which is proper and regular in all cases where a nonsuit or order dismissing the complaint is directed on the trial. He cannot be required, nor is he at liberty to deliberate upon the question, and decide whether the party is entitled to costs, upon any inquiry into the reasons or grounds which induced the court to order such nonsuit. And therefore, in my judgment, his entries are regular, and if they could be impeached for want of power in the court, the question can properly be reviewed by an appeal from the judgment, which has been regularly entered. For these additional reasons, therefore, as well as for what seem to me the conclusive reasons assigned by the chief-justice, the order appealed from should be affirmed.

The order was affirmed, all the judges concurring.

VARONA a. SOCARRAS.

New York Common Pleas; Special Term, January, 1859.

WITNESS.-EXAMINATION OF PARTY.

The testimony of a party must be controverted or impeached in the same manner as that of any other witness.

A witness cannot be impeached in respect to credibility by proof of any single act of bad conduct, or any specific wrong transaction.

It is in the discretion of the court to interfere, and protect the witness against any inquiries not relevant to the issues, and having alone such an object in

view.

Motion for a new trial.

The action was brought to recover back a sum which the plaintiff had overpaid the defendant in settlement of an ac

count.

On the trial the plaintiff offered himself as a witness. On the cross-examination it was proved that the indebtedness which plaintiff had, as he alleged, overpaid, arose out of the fact that the plaintiff had received the proceeds of certain bills of ex

Varona a. Socarras.

change belonging to the defendant. The defendant offered questions for the purpose of proving that the bills were delivered to the plaintiff for a special purpose, and that they were fraudulently converted and misapplied by the plaintiff. These questions were offered with a view to impeach the witness's credibility. They were objected to on the ground that the defendant. must be confined to proof of the general character of witness as to credibility, &c. The objection was sustained. The plaintiff had a verdict; and upon a case embodying this and other exceptions not important to state, the defendant moved for a new trial.

Mr. Nash, for the motion.

F. R. Coudert, opposed.

HILTON, J.-Upon reflection, and an examination of the authorities, I am confirmed in the opinion expressed on the trial,— that a witness cannot, upon his cross-examination, or otherwise, be impeached in respect to his credibility, by proof of any single act of bad conduct, or any specific transaction which was criminally or morally wrong.

And it is in the discretion of the court to interfere and protect the witness against any inquiries, not relevant to the issues to be tried, and having alone such an object or purpose in view.

The rule, briefly stated, seems to be, that the credit of a witness may be impeached: 1st. By showing, on cross-examination, such contradictions or improbabilities in his evidence as to render him unworthy of belief. 2d. Disproving the facts as stated by him, by other witnesses. 3d. By general evidence affecting his character and credit for veracity; and, 4th. By proof of his having made statements out of court contrary to the evidence given by him at the trial. (Buller's N. P., 296; Peake's Ev., 140; 1 Macnally's Ev., 258; 1 Starkie's Ev., 95, §70; 1 Greenleaf's Ev., §§ 461, 462; 4 Phillip's Ev. (C. & H., notes), 717, note 364; Jackson a. Lewis, 13 Johns., 504; Southard a. Rexford, 6 Cow., 255; The People a. Hulse, 3 Hill, 309; Same a. Gay, 3 Seld., 378; Corning a. Corning, 2 Ib., 97, 104; Newton a. Harris, Ib., 345; Commonwealth a. Moore, 3 Pick., 194.)

But it is claimed that where the witness is a party to the ac

Varona a. Socarras,

tion, greater latitude should be permitted upon his cross-exami nation 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 wit nesses; 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. 15 Duer, 605; 3 Ib., 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.