People ex rel. Pres., &c., of D. & H. Canal Co. agt. Roosa and others. should bear a part of its burdens. Mathematical accuracy is impossible, but if it is valued at a sum twice as great as the highest value placed upon it by the relator's witnesses, the respondent will have no cause of complaint. It is clearly overvalued upon the tax rolls. Taking into account the earning capacity of the canal it is plain that it should not be valued beyond $16,000 per mile. It is a sum believed to be greater than any creditor of the relator would receive it for in extinguishment of its debts; and the taxable valuation is fixed. at that sum as being the very highest which the testimony will warrant. As the relator's property should be taxed at the same rate with that of all other property in the town, the conclusion is that during the years 1882 and 1883 the valuation of the canal should have been at a sum which forty-four and seven. tenths per cent of $16,000 per mile would produce, and at the same per cent upon $10,000 of property other than the canal. The remaining question is one of costs. The highest val uation placed upon the canal of the relator, and that was an estimate based upon cost, and not its earning capacity, was $50,000 per mile. With what justice did the respondents estimate its value at $42,500 or thereabouts per mile, when they knew they had estimated their own property and that of their neighbors by a different rule? Will they pretend that they valued the property of the relator, as they did that of others, at only forty-four and seven-tenths per cent of its actual value; or must they admit that while swearing to act impartially they have done the reverse? If the property of the relator was valued at the same rate as that of others, they must have deliberately determined that its actual value per mile was about $95,000, a sum so much in excess of their own evidence that it is difficult to predicate good faith in their action. Perhaps, however, charity requires the conclusion that the errors are mistakes rather than crimes, and acting upon that assumption no costs will be imposed. Thatcher et al. agt. Rankin. SUPREME COURT. GEORGE THATCHER et al. agt. CARL B. RANKIN. Removal of causes to United States courts. Cause for removal - Steps to be taken. Where the petition for removal of a cause from the state court to the United States court is made by a plaintiff who claims that he is a resident of New Jersey and that the defendant is a resident of New York, before or at the time of filing such petition, the petitioner must make and file in the state court an affidavit that he has reason to believe, and does believe, that from prejudice or local influence, he will not be able to obtain justice in such state court. Where a petitioner fails to comply with this requirement he cannot accomplish the removal of the action. Where the petition and bond have been "accepted, allowed and approved" by a justice of the state court, such acceptance, allowance and approval imply that said justice was satisfied, and decided that the amount in dispute did exceed the sum of $500; and if such decision can be reviewed at all in the state court, the application, if made to a judge other than the one who made such decision, must be on notice of motion to set aside such acceptance, 'allowance and approval as having been improvidently made. Special Term, July, 1885. ANDREWS, J.-It seems to me that this action is still in this court. It is doubtful whether it involves more than $500, as the term of employment is of uncertain duration, but the act of congress requires that the fact that the amount or value in dispute exceeds $500 should "be made to appear to the satisfaction" of the state court when the petition and bond are presented. The petition and bond in this case have been accepted, allowed and approved" by a justice of this court, and such acceptance, allowance and approval imply that said justice was satisfied, and decided that the amount in dispute did exceed the sum of $500; and if such decision can be reviewed at all in this court, the application, if made to a judge other than the one who made such decision, must be Thatcher et al. agt. Rankin. on notice of motion to set aside such acceptance, allowance and approval as having been improvidently made. I think, however, without regard to the question as to the sum in controversy, that the petitioner has failed to comply with the act of congress in an important particular, and for that reason has not accomplished the removal of the action to the United States circuit court. The petition for the removal was made by the plaintiff, who claims that he is a resident of New Jersey, and that the defendant is a resident of New York. The right to remove the action therefore depends on subdivision 3 of section 639 of the United States Revised Statutes, which requires that before or at the time of filing the petition, the petitioner must make and file in the state court an affidavit that he has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such state court. Upon my request to the clerk to be furnished with all the papers filed in this action I have received several, but there is no such affidavit among them, and I conclude, therefore, that no such affidavit has been filed. As the petitioner has apparently failed to comply with this important requirement of the act of congress, it seems to me that the action is still pending in this court, and I should now give the plaintiffs an opportunity, if they desired it, to be heard on the merits of the motion to continue the injunction, but for the fact that, on looking over the papers submitted by the defendant, I am convinced that the injunction cannot be dissolved. The defendant entered into a written contract, whereby he engaged himself to the plaintiffs, for the season, and as it would be impossible for them to prove their damages in an action at law, they are entitled to the injunction. The statements in the defendant's affidavit as to what Primrose told him do not amount to such an allegation of fraud in inducing the defendant to make the contract as, if true, would O'Donohue et al. agt. Simmons. enable the defendant to have the contract annulled on that ground. The failure of the plaintiffs to reply to defendant's telegram did not authorize him to make another engagement nor in any way operate to relieve him from the obligations of his contract with the plaintiffs. The motives of the plaintiffs in holding the defendant to the performance of his contract cannot be inquired into, nor is it material how many or how few contracts the plaintiffs have made in the belief that the defendant would keep his engagement. As I have reached this conclusion from an examination of the defendant's papers, I shall return all the papers to the clerk, and the respective attorneys will take such course as they may think proper in regard to submitting or not sabmitting an order to be entered on this decision. SUPREME COURT. JOSEPH J. O'DONOHUE et al., respondents, agt. ZACHARIAH E. SIMMONS, appellant. Sheriff-Bond of indemnity — Liability of the sureties thereon. In an action upon a bond of indemnity to the sheriff, it was error to refuse to charge the jury that if neither the sheriff nor any of his deputies judged the property taken under the execution in reference to which the indemnity applied was owned by the judgment debtor, then the defendant was entitled to a verdict. First Department, General Term, September, 1885. Before DAVIS, P. J., BRADY and DANIELS, JJ. A. M. Whitehead, for appellant. James M. Smith, for respondent. O'Donohue et al. agt. Simmons. BRADY, J.-This action was brought by the plaintiff's upon a bond of indemnity executed by the defendant and one Michael S. Purcell (since deceased) to the plaintiff's assignor, James O'Brien, then sheriff of the city and county of New York. The case is here for the second time on appeal, and several of the questions which are now presented are kindred to those already passed upon on the first appeal, the result of which is reported in 31 Hun (p. 267). It is not at all improbable that a consideration of all the other exceptions in the case would result favorably to the respondents, but it is not deemed necessary or advisable to consider them for the reason that one exception appears to be fatal to the maintenance of the judgment. The bond is in the usual form of a bond of indemnity, and provides for protection to the sheriff and all persons assisting him from any damages that might accrue to him or them for levying, attaching and making sale under and by virtue of the execution, of all or any personal property which he or they should or might judge belonged to the judgment debtor named. The defendant's counsel requested the court to charge that if neither the sheriff nor any of his deputies judged the property taken under the execution in reference to which the indemnity applied was owned by the judgment debtor, then the defendant was entitled to a verdict. The court refused so to charge, and an exception was duly taken. What was said on that subject, if anything otherwise, does not appear, inasmuch as the charge is not given in the record. As said in the case of Clark agt. Woodruff (83 N. Y., 525) “it is never the purpose of these indemnities to make the obligors responsible for trespass which they do not direct or authorize. We should not yield to such a construction. The mischiefs resulting would be very great, not only to the parties and to the public, but to the officers themselves." And in the same case in the supreme court (18 Hun, 423) it was said: "It can hardly be supposed that the parties who executed the bond intended to create a roving commission by which the |