Bmurrm. v. cmcaeo, M. & sr. P. RY. 00. 51
the prayer of the petition, and ordered the cause to be removed.
Upon the filing of the record in this court, the plaintiff moved for an
order remanding the case, on the ground that the cause of action de-
clared on in the petition was joint and not separable, and that con-
sequently this court had not jurisdiction, for the reason that the
plaintiff and the defendant Ernsley were citizens of the same state.
In Ayres v. Wiswall, 112 U. S. 187, S. G. 5 Sup. Ct. Hep. 90, it is
decided that-
" The rule is now well established that this clause in the section refers only
to suits where there exists a separate and distinct cause of action, on which
a separate and distinct suit might have been brought, and complete relief af-
forded as to such cause of action, with all the parties on one side of that con-
troversy citizens of different states from those on the other. To say the least.
the case must be one capable of separation into parts. so that in one of the parts
a controversy will be presented with citizens of one or more states on one side
and citizens of different states on the other, which can be fully determined
without the presence of the other parties to the suit as it has been begun."
In Louisville et N. R. Co. v. Ide, 114- U. S. 52, S. C. 0 Sup. Ct. Rep.
735, it is held that, if several defendants are sued jointly in a state
court upon a joint cause of action arising upon contract, and separate
answers are filed tendering separate issues for trial, this does not di-
vide the suit into separate controversies, within the meaning of the
last clause of section 2, act 1875.
In Carson v. Tvedt, 115 U. S. 41, S. C. 5 Sup. Ct. Rep. 1034, 1161,
the same principle is applied to a joint action in tort. In that case A
it was averred in the petition filed by plaintiffs that the defendants,
confederating together with the malicious design entertained by them
of injuring plaintiffs and breaking up their business, did cause an
action in attachment to be brought without probable cause; and, by
direction of defendants, the writ of attachment was levied upon plain- _
tiifs’ stock in trade, and their business was destroyed. The defend-
ants Wood & Stiles answered, averring that they were attorneys, and
had acted under the instructions of their clients, Carson, Pirie & Co.
The latter averred that they had caused the issuing and service of
the writ, and Bled a petition for the removal of the cause into the
[ United States court. The question of the right of removal was car-
ried to the supreme court, and in the opinion, after citing the ruling
in Louisville it N. R. Oo. v. [de, supra, it is held that——
"We are unable to distinguish this cause in principle from that. There is
here, according to the complaint, but a single cause of action, and that is the
alleged malicious prosecution of the Plaintiffs by all of the defendants acting
in concert. The cause of action is several as well as joint, and the plain-
tiifs might have sued each defendant separately or all jointly. It was for the
plaintiffs to elect which course to pursue. They did elect to proceed against
p, all jointly, and to this the defendants are not permitted to object. The fact
that a judgment in the action may be rendered against a part of defendants '
only, does not divide a joint action in tort into separate parts any more than
vit does a joint action on contract. " - .
  U