by John Marshall Harlan

“ Justice Gray, said: 'It is well settled that an action of tort, which might have been brought against many persons or against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy which will suthorize its removal by some of the defendants into the circuit court of the United States, even if they file separate answers and set up different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one ”

“ At the time of the injuries complained of, neither the Illinois company nor any of its servants controlled, used, or operated the railroad engine or cars with which the deceased came into contact and was killed, but that the management, custody, control, and operation of the leased road and property was with the Iowa corporation exclusively; and that there was, it is alleged, a separable controversy between the Iowa company and the plaintiff, citizen of Illinois, which entitled that corporation to have the cause transferred for trial into the Federal court. ”

“ A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings,"-citing Pirie v. ”

“ It is a joint action against two railroad corporations,-the Chicago, Burlington, & Quincy Railway Company of Iowa, and the Chicago, Burlington, & Quincy Railroad Company of Illinois,-to recover damages alleged to have been caused by the negligence, carelessness, and improper conduct of the defendants by their agents and servants, whereby one Harold R. Wellman, the intestate of the plaintiff, was killed. the particular railroad from the operation of which the injuries in question arose is located wholly in Illinois, and the plaintiff, Willard, is a citizen of that state. ”

“ Rep. 735, in which Chief Justice Waite said that a defendant had no right to say that an action shall be several which a plaintiff elects to make joint, this court, speaking by Mr. Justice Day, said: 'The language is used of an action begun in the state court; and it is recognized that the plaintiff may select his own manner of bringing his action, and must stand or fall by his election. If he has improperly joined causes of action, he may fail in his suit ”

“ Diverse state citizenship of the parties, or some other jurisdictional fact prescribed by the 2d section, is absolutely essential, and cannot be waived, and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed. ”