Page:Federal Reporter, 1st Series, Volume 4.djvu/893

 MERCHANTS NAT. BANK V. THOMPSON. 879 �I bave looked at many of the cases, but none of them resemble tbis case very closely. It is for the good sense of the court in each case to discover whether there is one distinct and independent controversy between citizens of different states. If there is, the cause may be removed by any one of the party, no matter how many other contrbver- sies may be involve d ta the same suit, between persons vho oould not be impleaded in the circuit court. �It bas been intimated, though not decided, that if defend- ants are jointly sued upon a joint and several contract, as trespassers for a joint trespass, that, inasmuch as each defendant is severally liable, any one having the requisite citizenship might remove the cause, at least when the form of action was such that no question of contribution between the defendants could be effected by it. I have not seen even an intimation that they could sever when the plaintiff's right was single, and the defendants had, of themselves, and for their own convenience, split up the subordinate titles. �I am of opinion, therefore, that there îs not, at present, a controversy wholly between the plaintiff and the petitioner Thompson. �I have presumed, as both counsel did, that Clarke, who is described as of Boston, is a citizen of Massachusetts. This ought to appear affirmatively, if the jurisdiction of this court depended upon its affirmation ; but, as the burden of proof is on the removing defendant, and it does not appear that Clarke is not a citizen of the place of his residence, no amend- ment is necessaryin order to find that the jurisdiction ia not made ont. �Cause remanded. ����