52 FEDERAL Rmronrnn. .
In Starin v. Mayor of New York, 6 Sup. Ct. Rep. 28, it is ruled
"that a separate defense by one defendant in a joint suit against him
and others, upon a joint, or a joint and several, cause of action, does
not create a separate controversy, so as to entitle that defendant, if
the necessary citizenship exists as to him, to a removal of the cause,
under the second clause of section 2 in act of 1875."
The rule deducible from these authorites is that, in all actions,
whether in tort or upon contract, wherein the liability of the defend-
ants is joint, or joint or several, the plaintiff may, by declaring against
all jointly, present in his petition only one cause of action, and, in
such case, the defendants cannot, by tendering separate issues in their
answers, claim that thereby separable controversies are involved, so
as to entitle one or more of the defendants to remove the cause under
the second clause of section 2 of the act of 1875. The right of re-
moval turns upon the question whether the plaintiff, by the averments
of fact in his petition, shows that he bases his action upon a cause
which is joint, or may be made so, at the option of plaintiff, against
all defendants, and that plaintiff has, in the latter case, elected to
declareagainst all the defendants jointly. If the averments of the
petition show that the cause of action is joint, or, being joint and
several, has been declared on as joint by the plaintiff, then the cause
is not removable unless all therdefendants are citizens of a state other
than that of which plaintiff is a citizen. If, however, the facts averred
in the petition show that the plaintiff has united therein more than
one cause of action, and that the same can be so separated as to pre-
sent a controversy between citizens of different states, which can be
fully determined without the presence of the other parties to the suit,
then the cause may be removed. The mere fact that the plaintiff
may have the right to make several parties defendants in the same
action does not settle the question whether the petition presents sep-
‘ arable controversies. Thus, under the code system of pleading, it
is permissible to unite in one action, as defendants, the maker, in-
dorser, and guarantor of a promissory note, yet it would hardly be
claimed that the action against them was a joint action in the sense
in which_that term is used in the cases just cited. The liability of
the guarantor or indorser is based upon a different obligation or con- ,
tractfrom that of the maker of the note, and, although both may be
made defendants in the same action, yetthey are defendants to dif-
ferent causes of action, in the proper legal sense of that term. The
cause of action is a breach of contract, or a tort committed by the de-
fendant. This is not to be confounded with the injury resulting there-
from, nor with the remedy provided by law for the benent of the party
injured in person or property. In a suit against the maker of the
note, the cause of action is the breach of the contract to pay the
amount of the note at maturity. This is a contract absolute and un-
conditional. The injury to plaintiff is the result of the breach of the
contract on part of the maker of the note, and is madegood by award-