1877. March Term. George & als. V. Pilcher &als. remove the cause under the last named act (act of 1867), provided all the plaintiffs or all the defendants join in the petition, and all the parties petitioning are non-residents, as required under the judiciary act; but it is a great mistake to suppose that any such right is conferred by that act where one or more of the plaintiffs or one or more of the petitioning defendants are citizens of the state wherein the suit is pending, as the act is destitute of any language which can be properly construed to confer any such right unless all the plaintiff's or all the defendants are non-residents and join in the petition." This would seem to be conclusive against the petitioners in the case before us. The plaintiff, Pilcher, is a resident of this state, and all of the defendants are not non-residents, and all did not join in the petition. But it was argued at the bar on behalf of the petitioners (the appellants here), that while the suit is in the name of Pilcher as plaintiff, against all the other parties as defendants, yet Pilcher is a nominal plaintiff; and that the suit is really and substantially a controversy between the petitioners on the one side, all of whom are non-residents, and the other defendants on the other side; and the case must be considered as if it were a suit by the petitioners against the other defendants, or vice versa; and that if it does not come within the letter, it is at least within the spirit of the act of 1867. This argument is plausible, but not sound. It is true that in a bill of interpleader proper the plaintiff claims nothing adversely to the defendants, and admitting that he owes a debt, or duty, or other thing, which is claimed from him by two or more persons by different or separate interests, and that he is ready to render it, but not knowing which of the claimants has prays 1877. March Term. the better right, to save himself from injury he that the claimants may be required to interplead and state their claims, and that the court may adjudge to whom the debt, duty, or other thing, belongs. Story's &als. Eq. Plead., § 291. When the case is matured, if the defendants do not deny the statements of the bill, the ordinary decree is, that the defendants do interplead; and the plaintiff' withdraws from the suit. Story's Eq. Plead., § 297. But he cannot "withdraw from the suit," we apprehend, until he has fully rendered the debt, duty, or other thing, required of him. Pilcher was ordered, by the decree directing the interpleader, to deposit in bank the amount of rents then due, and afterwards. "from time to time" to deposit the accruing rents when due; and the like order was made as to other tenants. So that when the petition for removal was filed, Pilcher was still a necessary party to the suit, and continued to be so; and it does not appear that any order was ever made allowing his withdrawal from the suit. But, even if it be conceded, that he was a mere formal party to the cause and his presence not necessary for the determination of the controversy between the defendants, and that this controversy between the defendants was substantially a suit between them within the meaning of the act of congress, still it would not be a case for removal under the act. For although the appellants, treating them either as plaintiffs or defendants in the controversy, were all non-residents and all united in the petition, yet all of the opposing parties were not residents of the state of Virginia. To authorize a removal under the act, as we understand. it, all of the petitioning parties must be non-residents and all of the other parties must be residents of the state in which the suit is brought. See 18 Wall., supra, VOL. XXVIII-39 George V. Pilcher & als. 1877. March Term. George V. Pilcher & als. and especially what Mr. Justice Clifford says on page 585. It was further argued by the counsel for the appel&als. lants, that although the petition was framed under the act of 1867, it states a case which would authorize a removal under the act of July 27, 1866. The last named act applies to a suit by a citizen of the state, in which the suit is brought against defendants, some one or more of whom are residents of the said state, and the other non-residents; and it allows a removal on the petition of the non-resident defendant or defendants as to him or them, "if the suit is one in which there can be a final determination of the controversy, as far as it concerns him (or them), without the presence of the other defendants as parties in the cause;" and it is expressly provided, that "such removal of the cause, as against the defendant petitioning therefor, into the United States court, shall not be deemed to prejudice or take away the right of the plaintiff to proceed at the same time with the suit in the state court as against the other defendants, if he shall desire to do so." If Pilcher is to be regarded as a plaintiff, and all the other parties as defendants, within the purview of this act, the appellants were not entitled to a removal of the cause for two reasons: 1. The controversy, so far as it concerns the appellants, could not be finally determined in the Federal court without the presence of the other defendants as parties in the cause. In fact, there is no real controversy between Pilcher (the plaintiff) and the appellants. The only controversy is between the appellants and the other defendants. Each party is asserting his own claim, and each contesting the claim of the other, and in such a controversy the claim of neither can be finally adjudicated in the suit without the presence of the other as a party in the cause. Moreover, if the suit should be removed as to the appellants, and the Federal court should render a final decree in their favor, the chancery court of Richmond might at the same time proceed with the cause as to the remaining defendants, and render a final decree in their favor; and thus we should have the anomaly of a final decree in the same suit in favor of each of the opposing claimants to the same estate. 2. The act confers the right of removal on the nonresident defendants only, and all who are non-resident must unite in the petition for removal. Some of the non-residents in this case did not unite in the petition. If, on the other hand, Pilcher is not to be considered as a plaintiff, within the meaning of the act, and the controversy between the defendants is to be regarded as a suit between them, then as defendants only can have a cause removed under this act, we must regard the appellants as defendants, and the other parties as plaintiffs. If so regarded, then plainly there would be no right of removal, because the appellants would be the only defendants, whereas the act provides for removal in suits where some of the defendants are residents of the state in which the suit is brought, and others are non-residents. It appears clear to us, therefore, that in no aspect of the case, were the appellants entitled either under the act of 1866 or under the act of 1867, to a removal of the cause into the circuit court of the United States, and that the prayer of their petition was properly denied. We proceed to consider the several objections presented by the bills of exceptions taken to the rulings of the court on the trial of the issue. The court, notwithstanding objection made by the 1877. March Term. George & als. V. Pilcher & als. March Term. George & als. V. Pilcher It 1877 plaintiffs, permitted the defendants to read in evidence to the jury the deposition of Joseph Mayo, who was dead at the time of the trial. The witness in his deposition detailed a conversation which was had between himself and one of the defendants Lee George, in the & als. presence of Constant C. Willamin, (another of the defendants), soon after the death of William O. George, in which conversation Lee George was represented as having made important admissions, touching the disputed marriage, which was the only question to be determined by the jury on the trial of the issue. Those two defendants were strangers to the witness, and on cross-examination, describing them, he said, "They were not black negroes. I think the brotherin-law had the lightest skin of the two. I think they were not bright mulattoes, but dark mulattoes." was proved by other witnesses, that the brother-in-law spoken of (Willamin) was a white man, and that Lee George was so bright that he could hardly be distinguished from a white man. It was further proved that about the time at which Mayo says he had the interview with the two men, Lee George and Willamin were both in Richmond inquiring for Mayo. The reading of the deposition as evidence was objected to because the witness did not sufficiently identify the parties whose admissions were sought to be proved by him. We think the deposition was properly admitted. The evidence of identity was prima facie sufficient to authorize the deposition to go to the jury. 1 Greenleaf on Ev. § 575 and notes, and cases cited by counsel for appellees, Reynolds v. Staines, &c., 2 Carr and Kirwan 745, 61 Eng. C. L. 744; Hamber v. Roberts, 7 Man. G. and S. 861, 62 Eng. C. L.; Collier v. Nokes, &c., 2 Carr and Kirwan, 1012, 62 Eng. C. L. 1011. As it is more convenient we will dispose of the |