This is a petition of the defendant Robert M. Douglas to remove into the Circuit Court of the United States, under the provisions of chapter 886, Acts of 1888 (25th Stat. at Large), a civil action brought in the Superior Court of *194 Wake County against the sureties alone upon the bond of a receiver appointed by the Circuit Court of the United States for the Eastern District of North Carolina.

1. Is the cause removable because the United States is a party ?

It was held in State of Maryland for the use of Markley v. Baldwin et al., 112 U. S., 490, that the State was only a formal plaintiff, the actual litigation being between other parties. “The name of the State is used from necessity when a suit on the bond is prosecuted for the benefit of a person thus interested, and in such cases the real controversy is between him and the obligors on the bond.”

Here it is evident that the real controversy is between the relator Tate and the defendants, the United States being only a formal plaintiff.

2. Is there a Federal question involved in this action ?

By these words are meant a question requiring a construction to be put upon the Constitution or some law of the United States or treaty made under its authority. The petitioner contends that five Federal questions clearly appear from the complaint and the answer of the petitioning defendant—

First. The construction of the bond sued on, which was given under a decree of the Circuit Court of the Unites States; whether the said bond is joint or several, upon which will depend the amount of the defendant’s liability, if he is liable at all.

Second. The construction of the order of the United States Circuit Court substituting the bond sued on for one that had theretofore been given. This defendant contends that the liability of the receiver accrued upon the first bond, and that the second bond is discharged.

Third. The construction of the decree of said Court of December 6, 1890, which only fixed the liability of the receiver, and not that of his sureties, and which was made without notice to the sureties.

*195 Fourth. The construction of the force and effect of the decretal order of said Court at June Term, 1891, giving the State Treasurer leave to sue, and not the State.

Fifth. The construction of section 3 of the Act of August 13, 1888, cited above.

The action was brought at the instance of the State Treasurer, by leave of the United States Circuit Court for the Eastern District of North Carolina, against the sureties on the receiver’s bond — not against the receiver. If it were an action against the principal, it seems that it might have been removed, at his instance, into the United States Circuit Court, under section 3 of the Act of 1888. But the liability of the receiver had already beeu ascertained in said Court.

No Federal question can arise upon the construction of the bond as to whether the liability of the sureties be joint or several. Neither the Constitution nor laws of the United States can afford any aid in the solution of this question. It is simply a question of law to be determined by settled rules of construction. The form of a receiver’s bond is not prescribed by any statute of the United States. The liability of the sureties thereon, like the liability upon a judgment in the United States Court, or that upon a treasury note or bond of the United States, involves no construction of the laws of the United States. Providence Savings Co. v. Ford, 114 U. S., 635. The same is true of the question arising upon the construction of decrees and orders of the United States Courts. There is nothing to show that any question of construction of these decrees and orders, other than the necessity to interpret them according to their plain meaning, will arise.

If the act should receive the wide interpretation claimed for it by the petitioner, no cause could be tried in the State Court if objection were raised by the defendant, where any right had been formerly determined in a Federal Court, as a discharge in bankruptcy, or where the title to land sold under foreclosure proceedings in such Court were necessary to be shown in evidence, or the like.

*196 The simple question is, whether the defendants are liable upon the bond, and to what amount ? It is like an “attempt to enforce an ordinary property right acquired under the authority of judgments and decrees in the Courts of the United States without presenting any question distinctly involving the laws of the United States.” Carson v. Dunham, 121 U. S., 421. The third section of the act referred to has no reference to an action against the sureties upon the bond, but asserts the general equity jurisdiction of the appointing Court over the receiver so appointed.

It might be that upon the question whether the State Court has given due effect to the judgments and decrees of the Circuit Court, there would be a right to review a judgment of the State Court, but this question has not yet arisen, and we are not to assume that it will arise.

It is to be observed that there is no separable cause of action in this case, and that there are four defendants. It is true that only the petitioning defendant has answered the •complaint, and the others are all in default, but in Putnam v. Ingraham, 114 U. S., 57, it was ruled that the fact that one •of the .defendants did not answer, but was in default, was immaterial, and that the default placed the parties in no different position with reference to a removal than they would have occupied if that one had answered and set up an entirely different defence from that of the other defendants. In Telegraph Co. v. Brown, 32 Federal Rep., 337, Brewer, J., speaking of the Act of 1887, section 2, first clause, which is that any suit of a civil nature, at law or in equity, arising under the Constitution or laws of-the United States * * * may be removed by the defendant or defendants therein to the Circuit Court of the United States for the proper district, etc., says: “Under the first clause all the defendants or all the plaintiffs must unite to accomplish a removal.”

The fact that the State of North Carolina has been made a relator in this action can have no effect. The misjoinder *197 of unnecessary parties is a mere matter of surplusage under The Code, and not a fatal objection. Clark’s Code,- 2d Ed.', p. 161. We bold, therefore, that the defendant petitioner has shown no removable cause.

Judgment Affirmed.