ers, by their counsel, in moving for the order which the state court made, and the contents of such order, show that the objection made is of no force in this court.

2. It is objected that the petition does not show that James M. Brown and Howard Potter were and are personally citizens of the United States, or of any state thereof, and that the averment is merely that they, 66*

as they are the qualified executors of the last will and testament of James Brown, deceased," were and are citizens of the state of New York. The case of Amory v. Amory, 95 U. S. 186, is cited. In that case certain persons, as executors, brought a suit in a state court of New York against a citizen of New Jersey. The defendant, in his petition for removal, averred "that said plaintiffs, as such executors, are citizens of the state of New York." The court said:

"Clearly this is not sufficient. Where the jurisdiction of the courts of the United States depends upon the citizenship of the parties, it has reference to the parties as persons. A petition for removal must, therefore, state the personal citizenship of the parties, and not their official citizenship, if there can be such a thing. From the language here employed, the court may properly infer that, as persons, the defendants in error were not citizens of New York. For all that appears, they may have been citizens of New Jersey, as was the defendant. Holding, as we do, that a state court is not bound to surrender its jurisdiction, upon a petition for removal, until at least a petition is filed, which, upon its face, shows the right of the petitioner to the transfer, it was not error for the court to retain these causes."

The facts of the present case do not bring it within the decision in Amory v. Amory. The expression, "as they are the qualified executors," etc., introduced by the plaintiff in the title of the suit, and strictly followed afterwards, is fairly to be interpreted as meaning and reading, "sued as qualified executors," etc. The petition is fairly to be read as averring that James M. Brown and Howard Potter, sued as qualified executors, are citizens, etc.; meaning that they, personally, sued as executors, are citizens, etc. The averment as to James M. Brown and Howard Potter must be taken in the same sense as the averment as to Schultze, which is that he, "also a qualified executor," is a citizen, etc., and as averring substantially that they, qualified executors, etc., are citizens,

etc., rejecting the words "as they are" as surplusage. Then there is the averment of the petition that the controversy is "between foreign citizens, or subjects and citizens of different states of the United States," taken in connection with the above-cited averments in the complaint and the declaration of the state court, in the order, as to the citizenship of the defendants, which must be held to refer to their personal citizenship, showing the interpretation given by the state court to the averments of the petition, and the fact that the state court surrendered its jurisdiction. The state court could not properly infer, and did not infer, nor can this court infer, that as persons James M. Brown and Howard Potter were not citizens of New York.

3. The want of acknowledgment or proof of the execution of the bond was a matter of practice for the state court to pass upon, and it will not be reviewed by this court after the state court has accepted the bond.

4. It is objected that the condition of the bond does not provide for the defendants appearing in this court and entering special bail in the suit, if special bail was originally requisite therein. The clause in the condition, providing that the defendant shall “do or cause to be done such other and appropriate acts," etc., is a sufficient compliance with any requirement in section 3 of the act of 1875 that the bond shall be one for appearing in the federal court.

The motion to remand the cause to the state court is denied.

NOTE. See in relation to removal bonds, Van Allen v. R. Co. 3 FED. REP. 545, and Hervey v. R. Co. Id. 707.

SMITH V. HORTON and others.

(Circuit Court, S. D. New York. February 12, 1881.)

1. REMOVAL-PETITION-ALLEGATION OF JURISDICTIONAL FACTS.

A cause is not removable under the act of March 3, 1875, or section 639 of the Revised Statutes, unless the petition for removal sets forth the jurisdictional facts.

2. SAME-SAME-ALLEGATION OF CITIZENSHIP.

In a suit against copartners for damages for injury to the person, a removal cannot be had under the first clause of section 2 of the act of March 3, 1875, unless the petition alleges that all of the defendants are of different citizenship from the plaintiff. [Ed.

F. W. Fitzgerald, Jr., for plaintiff.

G. S. Simpkins, for defendants.

BLATCHFORD, C. J. This suit was brought in a court of the state against the defendants, as copartners, to recover $8,000 as damages for injury to the person of the plaintiff. The complaint alleges:

That the plaintiff was passing along the sidewalk in front of the defendants' place of business, where they buy and sell flour; that the defendants were, at the time, taking barrels of flour into their said store from a truck standing near the curbstone, and in front of said store; that they obstructed the sidewalk and made it dangerous and created a nuisance, in that they allowed a person on said truck to negligently roll harrels of flour down a pair of skids; that a barrel struck the plaintiff while she was passing between the store and the truck, and using due care; and that she was thereby irreparably and permanently injured in her person. All three of the defendants in time filed, in the state court, a petition for the removal of the suit into this court. The petition is framed exclusively under the first branch of section 2 of the act of March 3, 1875, (18 St. at Large, 470,) and not at all under the second branch of that section, nor under any subdivision of section 639 of the Revised Statutes. It alleges that the plaintiff is a citizen of the state of New York; that the defendant Horton resides in the state of Connecticut, not that he is a citizen of that state, or that he is an alien or a citizen of any state; that the defendant Clark is a citizen of the state of New York; and that the

defendant Mangles is a citizen of the state of New Jersey. It prays for the removal of the suit. It does not refer to any particular statute. It does not allege that the suit is one in which there can be a final determination of the controversy so far as concerns any one or more of the defendants as parties in the cause. Nor does it allege that there is, in the suit, a controversy which is wholly between citizens of different states, and which can be fully determined as between them. To have the case considered as one removable under the second branch of section 2 of the act of 1875, or under any subdivision of section 639 of the Revised Statutes, the petition must set forth the jurisdictional facts. This petition alleges only that the controversy in the suit

"Is between citizens of different states; that is to say, between the abovenamed Bridget Smith, who is, and was at the commencement of this action, a citizen of the state of New York, and the above-named defendants, William Horton, who resides in the state of Connecticut, John F. W. Mangles, who is a citizen of the state of New Jersey, and Amos R. Clark, a citizen of the state of New York."

This case, therefore, must be considered as raising only the question whether a removal of it can be had on the petition filed under the first branch of section 2 of the act of 1875. It is clear, under the decision of the supreme court in Meyer v. Construction Co. 100 U. S. 457, that it cannot. Although all the defendants unite in the petition, they are not all of them alleged to be of a different citizenship from the plaintiff.

The motion to remand made by the plaintiff, is, for the foregoing reasons, granted, with costs to be taxed.

NORRIS v. MINERAL POINT TUNNEL and others.

(Circuit Court, S. D. New York. April 23, 1881.)

1. REMOVAL-MISTAKE IN PETITION.

A case is removable, under the act of 1875, when the petition sets forth the necessary facts, although the removal is erroneously prayed for under section 639 of the Revised Statutes.

2. SAME-ACT OF 1875.

The act of 1875 is not repealed by the marginal reference to the same in section 639 of the second edition of the Revised Statutes.[ED.

Motion to Remand.

E. R. Mead, for plaintiff.

J. F. Harrison, for defendants.

BLATCHFORD, C. J. The only objection to the jurisdiction of this court herein is that the petition for removal made by the plaintiff states that he desires to remove the suit into this court in pursuance of section 639, subd. 3, of the Revised Statutes of the United States, and that he did not file in the state court an affidavit as to prejudice or local influence, as required by that subdivision. The prayer of the petition is that the suit may be removed "pursuant to the aforesaid act." The petition states facts which make out a case for removal under the first clause of section 2 of the act of March 3, 1875, (18 St. at Large, 470.) The plaintiff was, at the time the suit was brought, a citizen of Pennsylvania, and the defendants were then-some of themcitizens of New York, and the rest citizens of Massachusetts. The mistake in the petition, by referring to the wrong statute, is unimportant, when the facts set forth in it make a case for removal under the act of 1875.*

The defendants contend that there is no existing statute, but section 639 of the Revised Statutes, under which a removal of a suit can take place; that in the second edition of the Revised Statutes, published in 1878, under authority of the act of March 2, 1877, (19 St. at Large, 268,) there is in the margin, opposite section 639, a reference to the act of *See upon this point Ruckman v. Ruckman, 1 FED. REP. 587.