The record discloses no further action in this case until January 4, when the answer of the Board of Public Works and the separate answer of Cluss were filed. The terference with his buildings. On the Works against Dainese and Frey, to prefiling of this bill a temporary restraining vent them from proceeding with the work order was granted, and the hearing of on the same buildings which are the subthe application for injunction was set for ject of the first suit. This bill was prethe 7th day of December. sented to Judge Wylie on the 31st December, 1872, when he granted a restraining order, and set the motion for an injunction for hearing at the City Hall, January 11, 1873, at 11 o'clock, A. M. The bill itself was afterwards, to wit, JanThe answer in substance admits that uary 2, filed in the Supreme Court. the contract with Frey was shown to answer of Frey is filed January 6, and that Cluss, and that Cluss issued a permit to of Dainese January 7, and the next acbuild. It denies that the buildings con- tion is on the 11th of that month, when form to the contract or to the permit, the following record entry was made: and avers that the materials of which "This cause came on to be heard on they are being constructed are insufficient bill, answer and affidavits; the cause was and dangerous, and that such being the argued by counsel. It is thereupon this opinion of Cluss, the inspector of build-day adjudged, ordered and decreed, that ings, the board had ordered their further the injunction prayed for in said bill be, construction to be arrested, and on the and the same is hereby, made permafailure of Dainese to conform to their re- nent." quirements, they ordered that the buildings should be pulled down by the police force. They annex as exhibits the affidavits of Morsell, Wilson, Edmonston and Fleming in support of their allegation of the character of the work, and also the rules and regulations respecting the construction of private buildings, prepared by them as a Board of Public Works. The next record entry in this case is under date of January 11, 1873, and is as follows: "This cause came on to be heard on bill, answer and affidavits. It is thereupon this day adjudged, ordered and decreed that complainant's bill be, and hereby is, dismissed." On appeal to the general term this decree was ordered to be affirmed without prejudice. What this qualification may mean we are quite at a loss to determine. There is found in this transcript statements of Dr. Verdi, health officer; of A. B. Mullett, who styles himself Consulting Architect of Board of Public Works; a protest of some twenty citizens against the buildings; also, of the trustees of school district No. 3, all of which are unsworn and wholly without authentication. There are but two affidavits in support of the bill, that of Entwissle and of Wood. The bill alleges in the same general terms as the answer to the first bill, that the buildings were of insufficient material, dangerous to the community, and in violation of the building regulations, especially sections 3, 5, 6, 9, 32, 33, 36. The answer is a specific and full denial of these allegations, and is supported by four affidavits. In this record there is no evidence in behalf of defendants except four affidavits filed with their answer as exhibits. There are eleven affidavits on behalf of plaintiff. Adverting now to case No. 38, it pre-preliminary injunction in either case. sents a bill filed by the Board of Public There is no replication to the answer in either case. There is no stipulation that the affidavits may be treated as depositions on the hearing. There is no order disposing of the application for Abstract of Opinion. As the subject matter is the same they will be consid-dence preponderates the other way, and ered together in this court, and should we must, on this ground alone, reverse have been consolidated and heard togeth- both decrees. er in the court below, though two separate decrees were rendered and separate records are presented to us. Usually when a case in chancery has been heard, and a final decree rendered, this court, if it reverses that decree, will direct such a decree as the court below should have rendered, which in this case would be to dismiss the bill of the Board of Public Works and render a perpetual injunction against them on the bill of Taking, however, the short and sententious order of the court to be as it purports, a final hearing on bill, answer, and affidavits in each case, we are of opinion that the preponderance of evidence as to the only issue made, is in appellant. But, pending the appeal, the favor of the appellant. That issue was whether the materials were so defective as to justify the arrest of the work after so much had been done, and whether the their removal can restore them or commode of constructing the buildings en-pensate the appellant for their removal. dangered the public safety. In deciding this question, the protest of citizens and of the trustees of the school district, and the statement of Dr. Verdi, and certificate of Mullett, cannot be considered, because they are not affidavits, and are not evidence under any circumstances, unless by consent. Looking to the suit of the board against Dainese, we have his full and unequivocal denial of the charges in his answer; and also that of Frey, supported by a decided preponderance of affidavits; and though we may suspect, from the fact that several of these latter are signed with a cross, that they were not the most intelligent men that could be found, they were probably mechanics engaged in the Board of Public Works has been abolished. The buildings undoubtedly have been removed, and no injunction against Besides, the summary and irregular manner in which the case was tried below leaves this court in great doubt as to what was tried, and on what evidence the cases were heard. On the whole we shall order the decrce of the Supreme Court of the District of Columbia to be reversed in each of the cases; that they be remanded to that court for such further proceedings, including leave to amend pleadings, as may be in accordance with equity and with this opinion. Appellant to recover his costs of appeal in both cases. Opinion by Mr. Justice Miller. work and fully capable of telling whether MARRIED WOMEN-NEGOTIABLE timbers were in a state of decay or were badly put together. If it be true that the proper officer, on examining appellant's contract, gave a permit for the erection of such buildings as it contemplated, and of this there is no denial, the other side should make a clear case of departure from the permit, or danger to public interests, before appellant should be arrested midway in the construction of the buildings, and have them summarily torn down, with all the necessary loss and expense to him of such a course. There is no such clear case made, and the evi PAPER. N. Y. COURT OF APPEALS. The Second National Bank of Wat- A married woman's note is a nullity, and This action was brought against de fendant, a married woman, having a separate estate, upon several promissory notes, signed by her as maker. The notes were in the usual form and terms of a promissory note, payable to the order of defendant's husband and indorsed by him. The court instructed the jury, that the fact that defendant had given her husband the notes in suit, with a view to having them discounted by plaintiff, was calculated to convey the impression to it that she was the principal, and that whatever was done was for her benefit. Held, Error: that as the notes could legally convey no impression, except of their nullity as a contract by defendant, they could not found any implication, presumption or impression that she was to be benefitted by them in her business or estate. That to give the notes any vitality, there must be found, aliunde the instruments, facts and circumstances which would establish that they were made in her separate business or for the benefit of her separate estate. The court also instructed the jury that as it appeared that defendant was the maker of the notes, and that she had a separate estate, plaintiff's cause of action was conceded, and it was for the defendant to overthrow the case thus made out, and that she must give the jury more perfect proof of the validity of the defence than plaintiff had given that it was not valid, that in case of doubt plaintiff was entitled to the benefit of the doubt. STOCKHOLDER. CORPORA TIONS. N. Y. SUPREME COURT-GENL. TERM, Graves, applt, v. Gouge, respt. A stockholder cannot maintain an action If the corporation refuses to proceed to recover, the plaintiff has his remedy by making it a co-defendant. Appeal from order sustaining demurer to a complaint. This is an action brought by plaintiff, who is a stockholder of a corporation called the "H. A. Gouge & Co.," to recover damages for loss sustained by him, by reason of the fraudulent acts of the defendant as president of the company aforesaid. The complaint alleges that the defendant and one F. R., by means of their opportunity as such officers of said company, fraudulently and illegally prevented the same from declaring dividends; that the defendant converted to his own use the surplus earnings of the corporation; that he has appropriated $4,000, per annum, of the funds of the corporation since it was formed; that he has appropriated to his own use a large amount of the personal property of said company, and that he has pledged the credit of the corporation, and used its Held, Error: that on the face of the funds for his own use, and not the comnotes, and with the fact known to plain-pany's advantage. The grounds of tiff that the maker was a married woman, the demurrer interposed, were, that the they were nullities; that the undisputed facts were insufficient to constitute a fact that defendant owned a separate estate did not of itself give the notes validity; proof of further extrinsic facts was necessary to make them effectual, and this proof it was for plaintiff to bring in preponderating force. Order of General Term aflirmed. cause of action, and that there was a misjoinder of parties' defendant. Held, That the rule of law in this State, on this subject, declares it to be an indispensable pre-requisite; that the circumstances to enable the maintenance of an action like this, must disclose injuries. individual and personal to the claimant as contra-distinguished from injuries to the corporation. The reason of the rule as stated in Gardner v. Pollard, 10 Bosw. 675, is, that if the stockholder can maintain a suit, and recover his alleged part of the whole damage, he may obtain a double compensation by means of the recovery in an action by the corporation for the same cause. The circumstances under which the bond was given are admissible to aid in interpreting the instrument. A secret understanding between the parties to the bond, not communicated to the obligee, cannot be shown. When a bond is conditioned as well to pay the debt as to indemnify the obligee, he can recover the entire debt, upon default, though he has paid nothing. B Such actions as the following have, This was an action upon a bond of inhowever, been maintained against the demnity given by defendants and one B., director or officer of a corporation, by a conditioned, that the said B. should fully stockholder, to wit: where the director pay and satisfy all claims for rent of ceror officer was guilty of misrepresentation tain premises in New York City, and to whereby the stockholder was induced to hold plaintiff harmless from any and every buy stock, or where, by fraudulently issu- liability for or on account thereof. ing spurious stock, for which the com- procured a lease of the premises to himpany was not liable, he becomes a wrong-self and plaintiff, the lease reciting that doer, and therefore responsible for the they were partners comprising the firm of evil he has done. 6. Abb. 247; 15 How. B. & Co. B. signed it with the firm name Pr. 349; 6. Abb. 270; 25 Barb. 578; 3 and with his individual name. SubsePaige, 222; 5 Paige, 607. quently he requested plaintiff to sign in his individual name, and he refused to do so without being secured. B. thereupon caused the bond in suit to be executed and plaintiff then signed the lease. It appeared that plaintiff was not a partner of B. Default having been made in payment of the rent, plaintiff brought this action. If the corporation refuses to proceed against the directors, the plaintiff has his remedy by making it a co-defendant. Where the plaintiff is able, by the peculiar and special circumstances of his case, to disconnect himself from the general injury to the company, he the presents an independent demand for which he can receive but one redress, and for which the defendant can be compelled to pay but one penalty. Order affirmed with costs. Held, Defendants were liable; that the language of the bond was sufficiently comprehensive to embrace a liability in any firm, whether then existing or subsequently incurred; that there is no Opinion by Brady, J.; Davis, P. J. rule which requires instruments of and Daniels, J., concurring. SURETY. N. Y. COURT OF APPEALS. Belloni, applt. v. Freeborn, et al. Decided, December 14, 1875. Instruments of suretyship must be inter preted in the same manner and by th same rules as are applied to other in struments. suretyship to be in all cases interpreted vith stringency and critical acumen in favor of the surety and against the reditor, and resolving all ambiguities to the advantage of the former, and exluding every liability from the operation of the instrument that can by a strained and refined construction be deemed outide thereof. The terms used and the respts.anguage employed are to be interpreted reasonably, according to the intent of the parties as disclosed by the instrument, ead in the light of the surrounding cirumstances and the purposes for which it vas made, in the same manner and by the same rules as in other instruments. 3 Kern. 232; 3 Keyes, 150; 43 N. Y., 244; 44 id., 677; 18 id., 502. The referee received evidence as to the circumstances under which the bond was given to aid in interpreting the instru ment. Held, No error. De'endants' counsel offered to prove a secret understanding not communicated to the obligee between the defendants and B. to limit the effect of the instrument. This evidence was excluded. Error to the Common Pleas of Westmoreland County. Amicable action. The case was stated as follows: "The defendant holds a mortgage against H. H. Null, recorded in the Recorder's Ooffice of said county, and judgments against Joseph Null, et al. entered in the Court of Common Pleas of said county for money loaned, the same not being for purchase-money of real estate. The assessor of the borough of West Newton assessed the same at $13,000, upon which the Commissioners of Westmoreland Co., on 1st of January, 1873, made an assessment at the rate of Held, No error: that the possession of the bond by the obligor was evidence of authority to deliver it, and authorized the obligee to act upon it as valid and eight mills for county purposes, amounteffectual; that no parol or other qualifi-ing to $104." cation of the liability imputed by the body of the bond not made known to the obligee could affect him or could be proved against him. Also held, That the bond being condioned as well to pay the debt as to indemnify the obligee against his liability to pay the same, the obligee was entitled to recover the entire debt, upon default in the payment, without having paid any thing. 3 Den., 321; 6, Cow., 623; 40 Barb., 235; 449; 17 J. R., 239, 479; 1 Comst., 550. Non damnificatus would not have been an answer to this action. Order of General Term, reversing judg ment on report of referce in favor of plaintiff and granting new trial, reversed. Opinion by Andrews, J. TAXATION. PERSONAL PROP ERTY. It was agreed between the parties, that, if the Court should be of opinion that the said mortgage and judgments were not exempted from taxation by the terms of the Act of April 4. 1868, P. L. 61, then judgment to be entered for the plaintiff, otherwise for the defendant, with leave to either party to sue out a writ of error. The Court, being of opinion that the Act exempted from taxation all "mortgages," "judgments," "recognizances,' and "moneys owing upon articles of agreement for the sale of real estate," entered judgment for defendant. The Court. The act in question is entitled, "An Act to promote the improvement of real estate by exempting mortgages and other securities from taxation except for State purposes, in certain counties of this commonwealth." The title makes no reference to the purchase money of real estate as the intended subject. The statement is that all mortgages, judgments, recognizances, and SUPREME COURT OF PENNSYLVANIA. moneys owing upon articles of agreement Westmoreland County v. Fries. for the sale of real estate made and exeDecided November 12, 1875. cuted after the passage of this Act, shall be exempt from all taxation except for The exemption of mortgages in certain State purposes, and that from and after counties in Pennsylvania from local taxation is not restricted to purchase- the first day of December next, no taxes money mortgages only. Act of April of any description shall be assessed or 4, 1868. (P. L. 61.) collected except for state purposes, on or |