liability of the defendants is joint and several; 54 even when a State statute permits judgment to be entered for or against one or more of the plaintiffs, and for or against one or more of the defendants,55 nor when the plaintiff sues less than all of those who are jointly and severally liable, 56 provided that the allegations in the bill do not clearly show that the liability is several.

Nor in a suit or proceeding to compel the joint performance of a duty by mandamus, or otherwise,57 or to enjoin them all from the performance of the same act,58 or of acts directly connected with each other.59

Where plaintiff sued upon two similar claims, one of which had been assigned to him; it was held that there was a separable controversy as regards the claim, to which he had an original right.60

It has been said that, "where an action is brought by one

54 Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. ed. 331; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. 730, 29 L. ed. 899; Core v. Vinal, 117 U. S. 347, 6 Sup. Ct. 767, 29 L. ed. 912; Tuedt v. Carson, 13 Fed. 353 (4 McCrary, 426); Kaitel v. Wylie, 38 Fed. 865; Brown v. Coxe Bros. & Co., 75 Fed. 689; Moore v. Los Angeles Iron & Steel Co., 89 Fed. 73. Contra, Clark v. Chicago, M. & St. P. Ry. Co., 11 Fed. 355 (3 McCrary, 591); Kerling v. Cotzhausen, 16 Fed. 705 (11 Biss. 582).

55 Louisville & N. R. Co. v. Ide, 114 U. S. 52, 29 L. ed. 63.

56 Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. ed. 331; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. 730, 29 L. ed. 899; Core v. Vinal, 117 U. S. 347, 6 Sup. Ct. 767, 29 L. ed. 912; Tuedt v. Carson, 13 Fed. 353 (4 McCrary, 426); Kaitel v. Wylie, 38 Fed. 865; Fox v. Mackay, 60 Fed. 4. Contra, Clark v. Chicago, M. & St. P. Ry.

Co., 11 Fed. 355 (3 McCrary, 591); Kerling v. Cotzhausen, 16 Fed. 705 (11 Biss. 582).

57 Ohio v. Columbus & X. R. Co., 48 Fed. 626.

58 Starin v. New York, 115 U. S. 248, 29 L. ed. 388, 6 Sup. Ct. 28; affirming 21 Fed. 592; New York v. New Jersey S. B. Transp. Co., 24 Fed. 817; Yearian v. Horner, 36 Fed. 130; McMillan v. Noyes, 146 Fed. 926; National Docks & N. J. Junction Connecting R. Co. v. Pennsylvania R. Co. (New Jersey), 52 N. J. Eq. 58, 28 Atl. 71.

59 Anderson v. Bowers, 40 Fed. 708; Davis v. County Court of Randolph County, 88 Fed. 705; Vulcan Detinning Co. v. American Can Co., 130 Fed. 635; Anderson v. Orient Fire Ins. Co. (Iowa), 88 Iowa 579, 55 N. W. 348.

60 Sharkey v. Port Blakely Mill Co., 92 Fed. 425.

61 Bates v. Carpenter, 98 Fed. 452, 454.

plaintiff against several defendants, not because they claim any joint interest or are subject to any joint liability in respect to the subject-matter of the action, but merely for convenience, it will generally be capable of resolution into separable controversies between the plaintiff and the individual defendants." 61

§ 541a. Separable controversies in suits for accountings. A suit for an accounting presents separate controversies, which if the other jurisdictional facts exist will justify a removal: where an accounting is prayed against one or more, but not all, of the defendants, and there is an actual controversy between the remainder and the plaintiff, or where the complaint prays separate accountings by different defendants who are not jointly liable nor interested in the accounts of the other, in which last case the controversy between them and the plaintiff is not separable; and, it has been held, when it prays a joint

§ 541a. 1 Geer v. Mathieson Alkali Works, 190 U. S. 428, 23 Sup. Ct. 807, 47 L. ed. 1122, a suit to set aside a contract between two corporations, to enjoin its directors from any further disposition of its property, for a reconveyance of the same, and an accounting by the grantee for the damages caused by the transfer, with which was joined a prayer that the defendants, who were directors of the grantor, should account for their actions in the premises and be required to make good all allowance and damage caused by their wrongful conduct. In a suit against a corporation and some of its officers for an injunction against all the parties from holding a meeting called by the latter for the purpose of conveying the corporate property to another company, and also for an accounting by such officers for the corporate funds, which, it was alleged, that they had appropriated to their own use, accompanied by a prayer for a receiver of the corporation, brought

by a stockholder who alleged that the corporation was under the control of these officers; held, that there was no such separable controversy between the complainants and the corporation as entitled the latter to remove the cause. Campbell v. Millken, 119 Fed. 981.

2 Langdon v. Fogg, 18 Fed. 5 (21 Blatchf. 392); Vinal v. Continental Const. & Imp. Co., 34 Fed. 228. See Golden v. Bruning, 72 Fed. 2. A suit for a conveyance of an undivided interest in lands held by a corporation, together with an accounting by such corporation of a similar proportion of the proceeds of lands by it sold, and also for an accounting by individual defendants for the proceeds of the sale of lands, acquired under the same title and sold by them before title was acquired by the defendant corporation, was held to present a separable controversy. Barney v. Latham, 103 U. S. 205, 26 L. ed. 514.

3 Burke v. Flood, 1 Fed. 541 (6 Sawyer, 220); Sexton v. Seelye, 39

and several accounting by trustees for the fraudulent misappropriation of trust funds. Where a joint accounting was prayed, but the allegations in the complaint showed that the liability was several, it was held that the case could be removed.5 A prayer in the complaint that "defendants may account for all the wrongs alleged, and on such accounting repay all sums realized by said defendants, or any of them," is not a prayer for a several account, and the controversy is not separable on that ground.

§ 541b. Separable controversies in suits affecting the title to land. A suit to quiet title contains separate controversies when the defendants do not claim under a common right or through a common source; 1 even, it has been held, where the bill'alleged that all of the defendants made some claim under a certain deed; but did not limit the controversy to the validity of such deed; 2 but not when the defendants are charged with being joined in a conspiracy to cloud the complainants' title and to defraud them of their property; 3 nor when one of two defendants holds the

legal title as trustee for the other;

nor in any case in which the defendants claim a joint or common right, or through a common source, with no difference between their titles, which affects the controversy in suit.5

A proceeding to recover the possession of land may be removed under similar circumstances; 6 it was held, in a suit to enforce a right to enter a park, that the owner and the lessees thereof had separate controversies with the plaintiff," but not, it has been held, a suit for a partition, where one of the defendants claimed to own the plaintiff's undivided share of the land. It has been held that, in a suit for specific performance against the vendor and his grantee of the land, there is a separable controversy between the plaintiff and such grantee; but not between the vendee and the vendor to the exclusion of the holders of incumbrances upon the land.10 In an action to set aside a conveyance, to which the grantor and the grantee are defendants there is no separable controversy between the plaintiff and the grantee,11 nor between the plaintiff and the trustee in bankruptcy of the fraudulent grantor.12

§ 541c. Separable controversies in condemnation proceedings. A separate controversy exists between the petitioner and each of the lot owners, in a proceeding to condemn different lots of land for a public use, when the only question in dispute

7 Sup. Ct. 32, 30 L. ed. 269; reversing decree Giles v. Little, 13 Fed. 100, 2 McCrary 370.

4 Rand v. Walker, 117 U. S. 340, 6 Sup. Ct. 769, 29 L. ed. 907.

5 Re Foley, 80 Fed. 949; Davey v. Yolo Water & Power Co., 211 Fed. 345.

6 Laidly v. Huntington, 121 U. S. 179, 7 Sup. Ct. 855, 30 L. ed. 883 (a suit for an assignment of dower); Collins v. Wellington, 31 Fed. 244; Anderson v. Appleton, 32 Fed. 855 (an action to establish a sale); Stanbrough v. Cook, 38 Fed. 369, 3 L. R. A. 400; Knight v. Lutcher & Moore Lumber Co., 136 Fed. 404, 69 C. C. A. 248; rehearing denied, 139 Fed. 1007;

Forsyth Mfg. Co. V. Putnam,

Hooker & Co., 139 Fed. 1007;
Cleveland v. Cleveland, C., C. & St.
L. Ry. Co., C. C. A., 147 Fed. 171
(lessor and lessee).
7 Sharp v.

Whiteside, 19 Fed. 150.

8 Torrence v. Shedd, 144 U. S. 527, 36 L. ed. 528.

9 Elkins v. Howell, 140 Fed. 157. 10 Bryan v. Barriger, 251 Fed. 328.

11 Moore v. North River Const. Co., 19 Fed. 803; Winnemans v. Edgington, 27 Fed. 324; Reineman v. Ball, 33 Fed. 692; German Savings & Loan Soc. v. Dormitzer, C. C. A., 116 Fed. 471.

is the amount of damages, and the respondents have no joint interest in any of the parcels to be condemned, nor in the damages to be awarded,1 except when the State statute directs that the proceedings against all of the respondents shall be tried together, and that a single finding be made including all the awards and all the assessments for benefits; in which case, it has been held that no separable controversy can exist. And one of two or more respondents to a condemnation proceeding, who hold different interests in the same lot, cannot remove the case, since there is no separable controversy as regards them.3 mortgagee or a trustee, for the benefit of the holders of mortgage bonds, cannot claim to be interested in a separate controversy from that to which the mortgagor is a party. But, where only a part of the land was leased, it was held that there was a separate controversy, as regards that not leased, between the lessor and the lessee.5 It was held that a party who has leased the property to another for the term of ninety-nine years is indispensable to the controversy between his lessee and the person who institutes the condemnation proceedings, even, although such lessor

§ 541c. 1 Pacific R. R. Removal Cases, 115 U. S. 2, 23, 29 L. ed. 319, 327; affirming 19 Fed. 150; City of Chicago v. Hutchinson, 15 Fed. 129 (11 Biss. 484); Northern Pac. Terminal Co. v. Lowenberg, 18 Fed. 339 (9 Sawy. 348); New York, N. H. & H. R. Co. v. Cockcroft, 46 Fed. 881; South Dakota Cent. Ry. Co. v. Chicago, M. & St. P. Ry. Co., C. C. A., 141 Fed. 578; Deepwater Ry. Co. v. Western Pocahontas Coal & Lumber Co., 152 Fed. 824 (where the State statute authorized a proceeding against the landowners, either jointly or separately; and it was held that any one of them could remove so much as affected his land leaving the controversies between the others and the railway company in the State court); Drainage Dist. No. 19 v. .Chicago, M. & St. P. Ry. Co., 198 Fed. 253.

2 Kansas City v. Hennegan, 152 Fed. 249.

3 Bellaire v. Baltimore & O. R. Co., 146 U. S. 117, 36 L. ed. 910; Seattle & M. Ry. Co. v. State, 52 Fed. 594; Washington v. Columbus & C. M. R. Co., 53 Fed. 673; Helena Power Transmission Co. v. Spratt, 146 Fed. 310. But see Oroville & N. R. Co. v. Leggett, 162 Fed. 571; West Side R. Co. v. California Pac. R. Co., 202 Fed. 331.

4 Colorado Fuel & Iron Co. v. Four Mile Ry. Co., 66 Pac. 902, 29 Colo. 90.

5 Sugar Creek, P. B. & P. C. Ry. Co. v. McKell, 75 Fed. 34.

6 City of Bellaire v. Baltimore & O. R. Co., 146 U. S. 117, 13 Sup. Ct. 16, 36 L. ed. 910; City of Le Mars v. Iowa Falls & S. C. R. Co., 48 Fed. 661; City of Washington v. Columbus & C. M. R. Co., 53 Fed. 673.