two corporations named as defendants in a complaint which seeks to set aside for fraud a conveyance between such corporations, and to prevent the directors of the grantor from making any further disposition of its property, and prays for a reconveyance of such property and an accounting by the grantee for the damages sustained by the transfer, and also asks that such directors, who are joined as defendants and are not all residents of different states from plaintiffs, be compelled to account as agents and trustees for their actions in the premises, and be required to make good all loss and damage caused by their wrongful conduct.-Geer v. Mathieson Alkali Works, 190 U. S. 428, 23 Sup. Ct. 807, 47 L. Ed. 1122.

[c] (U. S. 1905) It being necessary to join, in a suit to foreclose a mortgage, persons against whom plaintiff desires personal judgment, there is not a separable controversy between plaintiff and the owner of the land, for the purpose of removal to the federal court.-(1902) United States Mortg. Co. v. McClure, 42 Or. 190, 70 Pac. 543, dismissed (1905) 197 U. S. 624, 25 Sup. Ct. 798, 49 L. Ed. 911.

[d] (U. S. 1902) There is not a separable controversy between plaintiffs and defendant bank, justifying removal of cause from state to federal court on the ground of separate controversy between citizens of different states, the complaint alleging that plaintiffs being minors, and owning land in common with defendant T., defendants fraudulently procured a sale to be made and ratified by the probate court of plaintiffs' interest to defendant T., to be for cash, but in which no payment was made; that defendant T. then gave defendant bank a mortgage; that defendants had ever since been in possession; that afterwards a decree was obtained adjudging the probate proceedings void, and plaintiffs owners of an undivided half,-and the prayer, being for an accounting, a partition, and a lien on defendants' interest for rents and profits.-German Savings & Loan Soc. v. Dormitzer, 53 C. C. A. 639, 116 Fed. 471.

[e] (U. S. 1902) A suit in a state court by a stockholder of a domestic corporation, who is a citizen of the same state, against such corporation and a foreign corporation, the purpose of which is to enjoin the latter from obtaining and exercising control over the property, business, and corporate stock of the domestic corporation, does not involve a separate controversy between complainant and the foreign corporation, which gives the latter the right of removal. Such suit is necessarily based entirely upon the rights of complainant as a stockholder of the domestic corporation, and to every controversy between him and the foreign corporation involving such rights the domestic corporation is a necessary party.-MacGinniss v. Boston & M. Consol. Copper & Silver Min. Co., 55 C. C. A. 648, 119 Fed. 96.

[f] (U. S. 1905) Separate causes of action disclosed by the bill or complaint in a single suit, on either of which a separate suit could be maintained, and the determination of neither of which is essential to the determination of the other, constitute separate controversies within Act March 3, 1887, c. 373, § 2, 24 Stat. 552; Act Aug. 13, 1888, c. 866, 25 Stat. 433 [1 U. S. Comp. St. 1901, p. 509], and if either controversy, when the parties have been properly arranged on opposite sides, is wholly between citizens of different states, the suit is removable. Judgment and order, Weldon v. Fritzlen (C. C. 1904) 128 Fed. 608, reversed.-Boatmen's Bank of St. Louis v. Fritzlen, 68 C. C. A. 288, 135 Fed. 650.

[g] (U. S. 1900) The real ground supporting the right of a receiver appointed by a federal court for a state corporation to remove a suit commenced against him in a state court appears to be the ancillary nature of such suit, and not that it is one arising under the Constitution or laws of the United States, and the jurisdiction of the federal court rests ultimately upon the diversity of citizenship between the parties to the suit in which the receiver was appointed. Such being the case, where such a receiver is properly joined in the state court with a codefendant who has no right of removal, and the suit does not involve a separable controversy, it cannot be removed by the receiver.-Marrs v. Felton (C. C.) 102 Fed. 775.

[h] (U. S. 1901) Plaintiff, in suit against H., E., and S., sought to recover land, the petition alleging that S. made a parol gift of the land to

plaintiff, and put him in possession; that plaintiff remained in possession over seven years, without any claim by S.; that after the gift, and while plaintiff was in possession, S. deeded the land to E., without plaintiff's knowledge, and that thereafter E. deeded it to H., after H. had received notice of plaintiff's claim. The petition asserted plaintiff had complete title to the land, and prayed, if he had not, that he have a decree against all the defendants for specific performance of the promise of S. to give him the land. It also prayed for decree for the land, and for cancellation of the deeds to E. and H. Held, that there was not a separable controversy between plaintiff and defendants, so as to allow of removal of the cause to the federal court.-Smedley v. Smedley (C. C.) 110 Fed. 255.

[i] (U. S. 1901) A suit by stockholders of a corporation against such corporation and a second corporation, which, the bill alleges, has, through an unlawful combination, obtained a controlling interest in the first, and by virtue of such control has managed its business to the detriment of its stockholders, and for its own benefit, and where an injunction is prayed restraining the payment of dividends, by the second corporation until an accounting has been made, is one in which the complainants in effect represent their corporation, and which involves a separable controversy as to the second corporation that entitles it to remove the cause where the other facts requisite to give a right of removal exist; and officers of the two corporations made defendants with a prayer for an accounting from all the defendants are merely formal parties, whose joinder does not defeat such right of removal, where no facts are alleged which entitle the complainants to relief against them as individuals.-Lamm v. Parrot Silver & Copper Co. (C. C.) 111 Fed. 241.

[j] (U. S. 1902) A suit in equity by stockholders against the corporation, its directors and another stockholder, who owns a majority of the stock, to enjoin the defendants from making certain dispositions and uses of the property and assets of the corporation, does not involve a separable controversy between complainants and the defendant stockholder which gives the latter the right to remove the cause into a federal court on the ground of diversity of citizenship, where complainants and the corporation are citizens of the same state. Hanover Nat. Bank v. Credits Commutation Co. (C. C.) 118 Fed. 110.

[k] (U. S. 1902) In a suit against a corporation and certain of its officers, brought by stockholders on an allegation that the corporation is under the control of such officers, the purpose of which is to require the individual defendants to account to the corporation for fúnds alleged to have been appropriated by them to their own use, and to prevent the holding of a meeting, called by them, for the purpose of having the property of the company conveyed to another corporation, there is no controversy between the complainants and the company which entitles the latter to remove the cause from a state court on the ground that it is a nonresident and that there is a separable controversy, although incidental relief by way of an injunction and the appointment of a receiver may be prayed for against it, such relief not being asked adversely to the corporation, but in its interest, and the only real controversy being between complainants and the individual defendants.— Campbell v. Milliken (C. C.) 119 Fed. 981.

[1] (U. S. 1904) An action brought in a state court against a number of defendants, all of whom are citizens of other states, is removable by any one of the defendants, although it involves but a single controversy.-Munford Rubber Tire Co. v. Consolidated Rubber Tire Co. (C. C.) 130 Fed. 496.

[m] (U. S. 1906) The complaint, in an action in a state court, stated a joint cause of action against two defendants, one a domestic, and the other a foreign, corporation. The latter, which was brought in by substituted service, made default, and a judgment was entered against it thereon. On a trial of the case against the domestic corporation, a judgment was rendered in its favor, from which plaintiff appealed. Held that, until final disposition of the appeal, it was not established that a separable controversy existed between plaintiff and the foreign corporation which entitled the latter to remove the cause.-Lathrop, Shea & Henwood Co. v. Interior Const. & Imp. Co. (C. C.) 143 Fed. 687.

[n] (U. S. 1907) Since a proceeding to condemn land by Kansas City under its city charter as construed by the Supreme Court of the state presents a case of an indivisible unit, to be tried to one and the same jury, unless a jury trial is waived, and the whole finding as against all the defendants must be embraced in one judgment, so that if reversed on appeal the entire case must be tried de novo, such a proceeding as against both residents and nonresidents did not present a separable controvery as between the city and the nonresidents whose property was sought to be condemned, and was therefore not removable to the federal courts.-Kansas City v. Hennegan (C. C.) 152 Fed. 249.

[o] (N. C. 1898) A creditors' bill to wind up the affairs of an insolvent corporation, administer its assets among its creditors, and establish a joint and several liability for its debts on the part of another corporation, which sustained to it the relation of a partner, and to sell lands in which it is alleged both corporations had equitable interests, as well as those persons represented by defendant trustees, constitutes but a single inseparable controversy; and hence one of the corporations, though a nonresident, cannot have the cause removed to a federal court, on the ground of its diverse citizenship. Mecke v. Valleytown Mineral Co., 122 N. C. 790, 29 S. E. 781.

[p] (N. C. 1907) A suit by a citizen of the state against a foreign and a domestic railroad company for damages for interference with his easements in streets on which his property abuts caused by the operation of trains thereon pursuant to an agreement between the companies, and for an injnetion to prevent further interference, presents a controversy which is not separable, and the foreign company is not entitled to remove the cause to the federal court on the ground of diversity of citizenship within Removal Act (Act Cong. Aug. 13, 1888, 25 Stat. 433, c. 866 [U. S. Comp. St. 1901, p. 509]). -Staton v. Atlantic Coast Line R. Co., 144 N. C. 135, 56 S. E. 794.

[q] (Tex. 1903) An action against two defendants is not removable from the state to the federal courts on their joint petition averring that the controversy arises under the laws of the United States as to one of them alone, where there is no separable controversy between plaintiff and the latter defendant, nor any evidence showing that the other defendant was made a party solely to defeat the removal.-Texas & P. Ry. Co. v. Huber, 33 Tex. Civ. App. 75, 75 S. W. 547.

III. JOINT OR JOINT AND SEVERAL CAUSES OF ACTION.

1. In General.

[a] (U. S. 1906) A plaintiff in ejectment has the right to join a lessee in possession having a leasehold estate and an equity for improvements made and the lessor, so as to conclude both by one judgment; and, having such right, one of the defendants so joined cannot make the controversy separable, nor remove the cause, where the other defendant and plaintiff are citizens of the same state. Judgment (C. C. 1899) 93 Fed. 113, reversed.-City of Cleveland v. Cleveland, C., C. & St. L. Ry. Co., 77 C. C. A. 467, 147 Fed. 171. [b] (U. S. 1900) An action by the receiver of an insolvent bank against numerous stockholders for the recovery of an assessment made upon the seceral stockholders for each one's pro rata share of the deficiency of funds necessary to discharge the obligations of the corporation involves a separable controversy within the provisions of the removal act.—Calderhead v. Downing (C. C.) 103 Fed. 27.

[c] (U. S. 1902) Where a petition in a state court alleges a joint cause of action against a resident and a nonresident defendant, it is not sufficient that the petition for removal avers that the resident defendant has no interest in the controversy, or that the cause of action in fact is not joint.Union Terminal Ry. Co. v. Chicago, B. & Q. R. Co. (C. C.) 119 Fed. 209.

[d] (U. S. 1904) A bill which seeks to enjoin the principal defendants from practicing a secret process alleged to be owned by complainant, and to have been learned by such defendants through a breach of trust and to restrain another defendant from assisting them in carrying out their unlawful purposes by using knowledge obtained while an employé of complainant as to the construction of machinery for practicing the process, does not present

a separate controversy between complainant and the latter defendant, which gives him the right of removal on the ground of diversity of citizenship, under the removal act of 1875 (Act March 3, 1875, c. 137, § 2, 18 Stat. 470), as amended 1887-88 (Act March 3, 1887, c. 373, § 1, 24 Stat. 552; Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 [U. S. Comp. St. 1901, p. 509]), where complainant and the other defendants are citizens of the same state.—Vulcan Detinning Co. v. American Can Co. (C. C.) 130 Fed. 635.

2. Contracts.

[a] (U. S. 1904) In a suit in equity brought in a state court on behalf of all of the creditors of an insolvent bank in Colorado against a number of stockholders to enforce their double liability under the Colorado statute, by requiring them each to pay the full amount of such liability to a master, to be applied pro rata, together with such sums as may be collected from other stockholders, on the debts of the bank-the remainder, if any, to be returned to defendants-there is no separate controversy with a single defendant which entitles him to remove the cause into a federal court.-Miller v. Clifford, 67 C. C. A. 52, 133 Fed. 880, 5 L. R. A. (N. S.) 49.

[b] (U. S. 1900) Nonresident insurance companies, who had severally paid policies on property of a lumber company destroyed by fire, although not to its full value, brought a suit in equity in a state court against the lumber company, which was a domestic corporation, and a railroad company, which was a corporation of another state, through whose negligence it was alleged the fire was caused, to enforce the right by subrogation to recover pro tanto against the railroad company for the loss, the lumber company having refused to bring action therefor or to join with complainants. Held, that the lumber company was an indispensable party to the determination and adjustment of the liability of the railroad company, and the latter could not remove the cause upon the ground that there was a separable controversy. -Broadway Ins. Co. v. Chicago G. W. Ry. Co. (C. C.) 101 Fed. 507.

[c] (U. S. 1905) Where, in an action against a railroad and a construction company for services under a contract made between plaintiff and the latter, the citizenship of the construction company only was diverse, and plaintiff alleged in a single cause of action that he performed services and furnished material for the railroad company, and that the construction company acted as agent of the railroad company, and sought to recover against defendants jointly, the complaint did not allege a separable cause of action, and the action was not, therefore, removable.-Lathrop Shea & Henwood Co. v. Pittsburg, S. & N. R. Co. (C. C.) 135 Fed. 619.

[d] (U. S. 1907) An action to recover the price of property sold, brought against the original purchasers and one to whom they assigned their contract, who assumed payment and to whom the property was delivered, presents a separable controversy as to the assignee, who may remove the same into a federal court, where the requisite jurisdictional facts appear, regardless of the citizenship of the other defendants.-Stimson v. United Wrapping Mach. Co. (C. C.) 156 Fed. 298.

[e] (La. 1904) Plaintiffs, furnishing materials to contractors of a building, sued, claiming the privilege on the building, making the contractors, the owners of the building, and a surety company, which had executed a bond for faithful performance of the contract, defendants. The complaint charged that the owners of the building had become personally liable by not having required the contractors to furnish a bond to secure the payment of workmen and materialmen. The surety was a party on the ground that the contractors, having defaulted, had assigned the contract to the company with all its rights and all the materials belonging to them. The plaintiff was a Missouri corporation, the contractors were citizens of Texas, the surety company was a citizen of Maryland, and the owner of the building was a Louisiana corporation. Held, that an application by the contractors and the surety company to have the case removed to the federal court was properly denied, the action being joint and several, arising ex contractu so as not to present a separable controversy between plaintiffs and petitioners for removal.-Union Iron & Foundry Co. v. Sonnefield & Emmins, 113 La. 436, 37 South. 20.

[f] (N. C. 1907) Plaintiff, in his complaint for breach of contract, stated a cause of action against one resident and two nonresident defendants, disclosing a joint liability and defeating a removal of the cause, where he set up a joint agreement with defendants, whereby the nonresident defendants agreed to furnish the money for a joint venture, the resident defendant was to pass upon the titles to land purchased, and plaintiff was to give his service in making purchases, it being intended that the mutual contributions to the venture should result in the common benefit of all the parties, and the promises being mutual, and where it is alleged that defendants and each of them refused to carry out the agreement, and that one of the nonresidents notified him to discontinue work under the contract, and that defendants would not further comply with it.-Davis v. Rexford, 59 S. E. 1002. 3. Torts in General.

[a] (U. S. 1902) Under Rev. St. Ohio, § 3305, declaring that, notwithstanding an Ohio corporation leases its railroad, it shall remain liable as if it operated the road, and "both the lessor and lessee shall be jointly liable" to any person for negligence, and "may be jointly sued" in the state courts, an action by a citizen of the state brought in the state courts for a joint tort, against the lessor of a railroad, a state corporation, and the receivers of the lessee, citizens of another state, was improperly removed to the federal court on the petition of the receivers, alleging that the other defendant "had no interest or liability jointly with the receivers"; plaintiff's petition not presenting a separable, but a joint, controversy, though at the time of filing the petition for removal the lessor had not been served with the summons, the sheriff's return showing that it had not been found.-Central Ohio R. Co. v. Mahoney, 52 C. C. A. 364, 114 Fed. 732.

[b] (U. S. 1903) Where in an action for injuries a joint liability was alleged against a railroad company and receivers thereof, who had been appointed by the United States Circuit Court, and the citizenship of the railroad company was the same as that of the plaintiff, there was no separable controversy, and the receivers were not entitled to remove the cause to the federal courts, either alone or with the railway company.-Rupp v. Wheeling & L. E. R. Co., 58 C. C. A. 161, 121 Fed. 825.

[c] (U. S. 1903) Plaintiff alleged that defendant railroad company and defendant palace car company were engaged in running a passenger train, on which plaintiff was accepted as a passenger; that the palace car was operated and controlled jointly by both defendants, and that the servants of the car company were also the servants of the railroad company; and that these servants so operated the train and palace car in which plaintiff was riding, that, by the violent movement of the cars, and the negligence of the employés of the defendant in putting plaintiff in a place of danger, he was thrown from the train and injured. Held, that the complaint alleged a joint cause of action against both defendants, and hence the palace car company was not entitled to remove the cause to the federal courts, where the railroad company was a citizen of the state where the action was brought.-Dougherty v. Yazoo & M. V. R. Co., 58 C. C. A. 651, 122 Fed. 205.

[d] (U. S. 1900) An action in tort against two defendants to charge them with liability on the ground of the negligence of servants employed by them jointly, does not involve a separable controversy, so as to be removable by one defendant alone.-Marrs v. Felton (C. C.) 102 Fed. 775.

[e] (U. S. 1901) The liability of officers of a corporation for damages alleged to have been sustained by the corporation by reason of their misconduct, where no conspiracy is alleged, is several, and an action against two such officers to recover damages on that ground is separable as to each defendant. -Youtsey v. Hoffman (C. C.) 108 Fed. 693; Bailey v. Cincinnati Leaf Tobacco Warehouse Co., Id.

[f] (U. S. 1901) An action against a number of defendants to recover damages for assault and false imprisonment, charged in the complaint to have been committed by certain of the defendants at the instigation of another defendant, through her agent, is one to enforce a joint liability for the tort, and is not removable by the last-named defendant, on the ground that as to her it involves a separable controversy.-Ward v. Franklin (C. C.) 110 Fed. 794.