Horace Gray

“ It is equally well settled that in any case the question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in the state court at the time of the filing of the petition for removal, independently of the allegations in that petition, or in the affidavit of the petitioner, unless the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal into the federal court. ”

“ Chief Justice WAITE, in delivering judgment, said: 'It is possible, also, that the company may be guilty and the other defendants not guilty; but the plaintiff, in its complaint, says they are all guilty, and that presents the cause of action to be tried. Each party defends for himself, but, until his defense is made out, the case stands against him, and the rights of all must be governed accordingly. ”

“ Under these circumstances, the averments in the petition that the defendants were wrongfully made [parties] to avoid a removal can be of no avail in the circuit court upon a motion to remand, until they court upon a motion to remand, until they are pr ven; and that, so far as the present record discloses, was not attempted. The affirmative of this issue was on the petitioning defendant. That corporation was the moving party, and was bound to make out its case.' 118 U.S. 270, 271, 6 Sup. Ct. Rep. ”