delivered the opinion of the court. After stating the facts as above recited, he continued:
The petition for removal was filed under the last clause of § 2 of the act of 1875, 18 Stat. 471, which is as follows:
“ And when in any suit . . . there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, may remove said suit into the Circuit Court of. the United States for the proper district.”
. As we have already said at this term in
Ayres
v.
Wiswall,
In the present case all the defendants are sued jointly and a's joint -contractors. There is more than one contract set out in, the complaint, and there is therefore more than one cause of action embraced in the suit, but all the contracts are alleged to be joint and binding on all the defendants, jointly and in the same right. There is no pretence of a separate cause of action in favor of the plaintiff and against the Louisville and Nashville Company alone. The answer of the company treats the several causes of action alike and makes the same defence *56 to all. For tbe purposes of' tbe present enquiry tbe casé stands as it would if tbe complaint contained but a single ' cause of action. Tbe claim of right to a removal is based entirely on tbe fact that tbe Louisville and Nashville Company, the petitioning defendant, has presented a separate defence to. tbe joint action by filing a separate answer tendering separate issues • for trial. This,' it has been frequently decided, fis not enough to introduce a separate controversy into tbe suit within' tbe meaning of tbe statute. Hyde v. Ruble, supra; Ayres v. Wiswall, supra. Separate.-answers by tbe several defendants sued on joint causes of action may present different questions for determination, but they do not 'necessarily divide tbe suit into separate controversies. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. Smith v. Rines, 2 Sumner, 348. A separate defence may defeat a joint recovery, but it cannot deprive á'plaintiff of bis right to prosecute bis own suit to final determination in bis own way. Tbe cause of action is tbe subject matter of tbe controversy, and that is for all the purposes of tbe suit whatever the plaintiff declares.it to be in bis pleadings. Here it is cértain joint contracts entered into by all the defendants for tbe transportation of property. On tbe one side of the controversy upon that cause of action is the plaintiff, and-ón tbe other all tbe defendants. Tbe separate defences of the defendants relate only to their respective interests in tbe one controversy. Tbe controversy is tbe case, and tbe case is not divisible.
It is said, however, that by tbe New York Code of Civil Procedure, § 1204, “judgment may be given for' or against one or more plaintiffs, and for or against one or more defendants,” and under this it has been held that when several are' sued upon a joint contract, and it appears that only a portion are bound, tbe plaintiff may recover against those who are actually liable. The same rule undoubtedly prevails in many other States, but this does not make a joint contract several, nor divide a joint suit into separate parts. It may expedite •judicial proceedings and save costs, but it does not change the form of tbe controversy, that is to say, tbe case. Tbe plaintiff *57 can still sue to recover from all, tbougb he may be able to succeed only as to a part.
The order remanding the case is Affirmed.