ment of the annuity, except in the general terms that the wife was to be paid so much a year. The court held the annuity apportionable, but put its decision expressly upon the statute 4 and 5 William IV, chauging the common-law rule. Trimmer v. Danby, 23 L. J. Ch. 979, was the case of an annuity of £150 to A. B. for life, no time of payment being fixed. The annuitant died eight days before the end of the year, and it was held by Kiddersley, V. C., that under the act of 4 and 5 William IV, the annuity was apportionable. In deciding the case, the vice-chancellor, referring to the act, said: "It is obvious that that is the very case now before the court, namely, that of an annuity for life, in which, unless the annuity had been declared to be apportionable, it would not have been so previously to this act." The rigid force of the rule that the construction, in the absence of a time fixed complaint, seeks to have the sale set aside, and to be reinvested with the title, the action affects the title to real property, and this court has jurisdiction of an appeal. Oct. 15, 1889. Getman v. Ingersoll. Opinion per Curiam. WEIGHT OF EVIDENCE. Where executors claim credit, on certain grounds, for payments made by them under a will, which it was afterward held, in an action for construction of the will, they had no right to make, and the surrogate disallowed them, and his action was affirmed by the General Term, this court will not review the decision. Oct.22, 1889. In re Meyer's Estate. Opinion by Earl, J. TAXATION -CERTIORARI, Under Laws of New York, 1880, chapter 269, which provides that the writ of certiorari may be allowed on petition of any person assessed, and claiming to be aggrieved, to review an assessment for taxation, where the petition shall set forth that the assessment is illegal, etc., it is not the proper remedy where the persons making the assessment were not legally authorized to do so, for in such a case there has been no assessment at all. The function of the writ of certiorari is to review the judicial action of inferior officers or tribunals. It assumes their existence, and the fact of official action, but draws in question the legality or correctness of that action. It is wholly unsuited to a case in which there is no officer and no tribunal, and where, as a consequence, there could not have been any judicial action, or any thing to review. In People v. Covert, 1 Hill, 674, that doctrine was settled in an opinion unusually brief and curt, but which touched the precise difficulty. It is said of that case, and of others like it, that they dealt only with a common-law certiorari; that it was competent for the Legislature to extend the range of the writ, and broaden its application; and that such was the operation of the act of 1880. But a correct view of that enactment will not justify such a construction. The statute allows the writ to be issued upon the petition of a person "assessed," and who is aggrieved by that assessment, and desires to review it. There must be an allegation that the assessment is illegal or erroneous. When the writ is granted, it will not stay the proceedings of the assessors; and if thereby the relief of a judgment is not reached before the collection of the tax, the remedy provided is a reimbursement in the next year. The writ is to run to the assessors, who are to return the assessment-roll, or copies thereof, and their official proceedings. In all this we observe that an old writ, whose function and character was well settled and understood, was applied to a new purpose, and moulded so far, and ouly so far, as was necessary to accomplish the review desired. But it remained a writ of review. It assumed the existence of the officers whose judicial action is sought to examine, and was not changed into a plough to root up a trespass. In its application to the present case, it usurped the functions of a writ of quo warranto. It challenged the titles of the two assessors. It pro in the will, is that an annuity becomes due and payable only at the expiration of a year, and thereafter year by year, is illustrated by the cases of Irvin v. Ironmonger, 2 Russ. & M. 531, and Hawley v. Cutts, Freem. Ch. 24. In Irvin v. Ironmonger the testator gave an annuity for life, and directed that the first year's annuity should be paid within one month from his death, and it was held that, though the first year's payment was to be made at the appointed time, the pay. ment of the second year did not become due until the end of that year. In Hawley v. Cutts the testator gave an annuity of £100 per annum, and the chancellor denied an application to direct that payment should be made quarterly, saying that he would not alter the payment otherwise than it was in the will. We perceive no indication on the face of the will in question taking the case out of the general rule. The testator might undoubtedly have directed that the annuity to Mrs. Reed should be apportionable, and if there was no express direction, if the intention to make it apportionable was inferable from any provision of the will, that intention would prevail. The fact that the rents of his real estate would, in the ordinary course, be collected quarterly, or at different periods within the year, or that the annuity is directed to be paid out of the income of the estate, are, we think, insufficient grounds for a construction in opposition to the general rule. The annuity is charged upon the net income of the whole estate of the testator, both real and personal, excluding the rents of 147 Cedar street. The income is not given as such, but a specified amount out of the income equal to the annuity. The executors are required to first pay out of the income charges and repairs on the real estate, and the amount required for these purposes must have been first ascertained before it could have been known whether the net income was sufficient to pay the annuity-a process naturally requiring a postponement of the payment of the aunuity for a period of time. Striking a yearly balance would have been a usual and natural way of executing the trust. The circumstances are quite consistent with the view that the testator had in view an annual payment of the annuity, and it is difficult to suppose that he intended to subject bis executors to the embarrass-nounced them intruders and usurpers, and denied ment of being obliged to make up an account of the income whenever called upon within the year by the annuitant. The whole title to the real and personal estate of the testator vested in the executors, subject to the performance of the trust to receive the rents, income and profits, and to distribute the net income as directed. Oct. 29, 1889. Kearney v. Cruikshank. Opinion by Andrews, J. Reversing 46 Hun, 219. APPEAL AMOUNT- TITLE TO REALTY.-Though plaintiff originally sues to have a judgment satisfied, and defendant enjoined from selling plaintiff's property by virtue thereof, yet where, pending the action, the property, worth $1,000, is sold under execution issued on the judgment, and plaintiff, by supplemental their official character and rights. When we remember that the writ of quo warranto has been abolished, and an action substituted; that such action is at law, and entitles the officer to a trial by jury; and that, under the Code, his title can only be challenged in that manner-we shall see that a writ of certiorari can of necessity perform no such office. It is quite true that the act of 1880 gives redress against not only an erroneous, but also an illegal, assessment, and in the latter case cancels and annuls the tax. But it contemplates an assessment made by proper officers, and which, although illegal in some respects, is not wholly and altogether void; for in the latter event there is abundant remedy open to the tax payer, and a certiorari will rarely issue where other sufficient and ade quate remedy exists. People v. Supervisors, 1 Hill, 198. The act of 1880 was intended to furnish a remedy where none before existed, and to reach error and illegality for which there was no adequate redress. As this case stood at Special Term, the relator was in no danger, and exposed to no risk. The collector would levy at his peril, for his warrant was void on its face. This court has held that the collector's authority consists of the assessment-roll, and the formal warrant annexed; and these must be read together, in determining the officers' power and protection. Van Rensselaer v. Witbeck, 7 N. Y. 517. If then no assessors, and so no assessment-roll, existed, the warrant would be void on its face, and confer no authority whatever. The collector could be sued if he levied, and the usurpers who directed him be held responsible; for the Special Term decided that the two men who signed the roll were not even assessors de facto. If they were such, the ground of the judgment would disappear; and if they were not, the remedy was elsewhere. Oct. 22, 1889. People, ex rel. Delaware & H. Canal Co., v. Parker. Opinion by Finch, J. Affirming 45 Hun, 432. ABSTRACTS OF VARIOUS RECENT DE- These conditions will be valid and effectual, provided they are not repugnant to the Constitution or laws of the United States, inconsistent with the jurisdictional authority of the State, or in conflict with the rule which forbids condemnation without opportunity for defense. Insurance Co. v. French, 18 How. 404; Doyle v. Insurance Company, 94 U. S. 535; Milling Co. v. Pennsylvania, 125 id. 181. It was competent for the Legislature of Pennsylvania to impose as a condition upon foreign corporations doing business in this State that they shall assess and collect the tax upon that portion of their loans in the hands of individuals resident within this State, and otherwise comply with the provisions of the act of 1885. The act imposes no tax upon the company; it simply defines a duty to be performed, and fixes a penalty for disregard of that duty. The Legislature having so provided, compliance with the act may, in some sense, be said to form one of the conditions upon which the corporation may do business within the State, and the corporation continuing its business subsequently would be taken to have assented thereto. This is however a condition implied even in the case of domestic corporations, that they will be subject to such reasonable regulations, in respect to the general conduct of their affairs, as the Legislature may from time to time prescribe, and such as do not materially interfere with or obstruct the CONSTITUTIONAL LAW-TAXATION-INDEBTEDNESS substantial enjoyment of the privileges the State has OF FOREIGN CORPORATIONS.— (1) A foreign railroad granted. Insurance Co. v. Needles, 113 U. S. 574. If corporation, by acts of the Legislature, was permitted this be so as to corporatious who are entitled to their to build a portion of its road through the State. By a charter privileges upon the footing of a contract, how certificate filed with the secretary of State under much the more is it so as to corporations who are merely provisions of act of Pennsylvania, April 22, 1874, the permitted by the Legislature to do business within this company designated a place of business, and an agent State as a matter of grace, and not of right. (2) The to represent them in the State. Act of Pennsylvania, New York, Lake Erie and Western Railroad Company, June 30, 1885, section 4, provides for the taxation of a foreign corporation, was permitted by acts of Pennthe indebtedness of all corporations "doing business sylvania, February 16, 1841 (P. L. 28), and March 26, in this Commonwealth," and the collection of the tax 1846 (P. L. 179), to build a portion of its road in the by the corporation. Held, that such act applied to State on payment of $10,000 annually to the State after the railroad company, and was a proper exercise of its completion. Held, that act of June 30, 1885, section 4, legislative power. The only questions are: Foreign taxing the indebtedness of corporations doing business corporations exercising their franchises under the in the State, and compelling them to collect such tax, laws of other States and countries are beyond the applied to such company, and did not impair the oblireach of our processes of taxation. We could not re- gation of the contract between the State and the corquire them ordinarily to comply with any such regu- poration, as set forth in the above private statutes. lation of our law, and therefore they are necessarily But it is said that the enforcement of the fourth secexcluded from the provisions of the act. Such foreigu tion of the act of 1885 against the defendant corporacorporations as are engaged in business in the State tion would impair the obligation of contract existing might doubtless be required to comply as a condition between the Commonwealth and the company, as set of their rights so to do, but this could only embarrass forth in the private statutes of 1841 and 1846, already the action of the local assessor, and upon this ground, referred to. Apart from these statutes, the defendant doubtless, they were wisely excluded from the opera- had the right by the comity of the States to contract tion of the act. The last member of the concluding and to sue within the State of Pennsylvania, but could sentence of the paragraph quoted is a mere inadvert- exercise no extraordinary franchises or special privience. The fourth section of the act of 1885 does in leges granted by the State incorporating it, as for interms embrace such foreign corporations as are en- stance, the right to eminent domain, or the privilege gaged in business in this State, and the question now of exemption from taxation. State v. Railroad Co., 25 to be considered is whether or not such a provision, as Vt. 433; Bridge Corp. v. Marks, 26 Me. 326; Tayl. Corp., respects the New York, Lake Erie and Western Rail- § 386. It was for the exercise of this extraordinary road Company, is a proper exercise of the legislative privilege and power of the State the annual payment power of the State. The general statement that for- of $10,000 was stipulated. There is nothing in the act eign corporations are ordinarily beyond the reach of to indicate that this sum was paid in lieu of taxes, or our processes of taxation is undoubtedly correct, but from exemption of any duty which might otherwise when a foreign corporation comes into Pennsylvania, be imposed upon the company, but for the privilege of and engages in business here, undoubtedly it does so exercising the right of eminent domain in the locasubject to the general policy of, and the course of leg- tion of their road through the counties mentioned, islation in, the State. Runyan v. Coster, 14 Pet. 122. under restrictions particularly specified. The effect A foreign corporation can exercise its franchises in of these acts of 1841 and 1846 was not to declare the Pennsylvania only so far as it may be permitted by company a corporation of the Commonwealth; but as the local sovereign. The right rests wholly in the Mr. Justice Thompson said in Railroad Co. v. Young, comity of the States. Paul v. Virginia, 8 Wall. 181. 33 Penn. St. 175: "For the purposes of this case the A corporation of one State cannot do business in rights involved are to be tested and judged by the another State without the latter's consent, express or same rules of law as if the company had been primarily implied; and that consent may be accompanied with incorporated by the Commonwealth. So far as the such conditions as the latter may think proper road runs through this State under the privileges to impose. St. Clair v. Cox, 106 U. S. 350. granted to it, the company is quasi a Pennsylvania corporation. The right of eminent domain within the restrictions of the grant was as fully conferred on them by the act of the 16th of February, 1841, as it ever is conferred on corporations exclusively within the State, and their rights and duties under the privileges granted must be ruled by the same principles." One State may make a corporation of another State as there organized and conducted a corporation of its own, quoad property within its territorial jurisdiction. Railroad Co. v. Harris, 12 Wall. 65-82; Graham v. Railroad Co., 118 U. S. 168. Thus it will be seen that the defendant exercises powers and franchises which it has received directly from the legislation of Pennsylvania; that a part of its property is actually within the limits of this State, and received the protection of our laws; and there is no good reason why the company should not be held subject to the same regulations as corporations of our own State. Penn. Sup. Ct., Oct. 7, 1889. New York, Lake Erie & Western Railroad Co. v. Commonwealth. Opinion by Clark, J. CONTRACT-SALE OF EXPECTANCY.— It is true, as claimed by defendant's counsel, that no one but Orin Hoyt could have made an agreement operative to convey a then present interest in the annuity and notes; but treating the releases as conveyances, were they effectual to convey the interest which the releasors subsequently acquired therein? At common law agreements for the sale of expectancies are generally held to be pernicious and void, because they offer temptations to heirs to anticipate the enjoyment of property by making disadvantageous bargains, which tend to their harm, and to involve the name and character of the family. They are also considered to be a fraud on the ancestor from whom is the expectancy of the estate, for the reason that the conduct of the heir and the fact of the sale of the expectancy is not generally disclosed to him, and he is thereby misled into leaving his estate to strangers, instead of his own heirs or family, when, had he known of the transaction, he might by a will have provided against his estate being thus diverted. They are sometimes held void as being in the nature of wagers, and therefore contrary to good morals and sound public policy. See the opinion of Parsons, C. J., in Boynton v. Hubbard, 7 Mass. 112, in which this subject is ably and fully discussed. In that case the defendant, for certain advances of money made to him by the plaintiff, covenanted with the plaintiff that if he (the defendant) should survive one T. H. he would pay over and convey to the plaintiff one-third part of all the real and personal estate that might descend to the defendant as an heir to said T. H. The defendant did survive said T. H., from whom a large estate descended to him, and he came into possession thereof. On his refusal to convey the same the plaintiff brought his action on the covenant. The court declared that the covenant was a fraud on the ancestor, productive of public mischief, and void. In later cases in Massachusetts it has been held that when the covenant is made fairly, on an adequate consideration, with the consent of the ancestor, it should be sustained. Fitch v. Fitch, 8 Pick. 479; Trull v. Eastman, 3 Meto. 121; Jenkins v. Stetson, 9 Allen, 128. See also Hall v. Chaffee, 14 N. H. 215, wherein the common-law rule is well stated. Benj. Sales, 81, notes. In the English Court of Chancery the decisions on this subject have not always been in consonance. In Batty v. Lloyd, 1 Vern. 141, the defendant agreed with the plaintiff, who was to have an estate fall to her upon the death of two old women, to give £350 in consideration of being paid £700 at the death of the two women, the plaintiff to secure the payment of the latter sum by a mortgage of her reversionary estate. The two women died within two years afterward, and a bill was brought by the plaintiff praying to be relieved from the bargain. The lord keeper said: "I do not see any thing ill in * * time when the interest transferred might be enjoyed, and not to its transfer. The decision in that case rested in part upon the doctrine that a check against a deposit is not in effect an assignment of it, and does not withdraw it from the control of the depositor. See also Curry v. Powers, 70 N. Y. 212. But it is the settled amount of the annuity and the mortgage notes. If they had not made the agreement, each at Orin's decease would have been entitled to one-third part of the estate-the defendant in his own and the other two in their representative capacity. Each gave up a onethird interest in the estate, and assumed one-third of Orin's support; the oratrix taking upon herself a bur-law of this State that a check or order drawn against den that the law did not impose, and relieving the others of a portion of theirs. The bargain was a fair one, and upon an adequate consideration; it was not a fraud upon Orin Hoyt; it in no way contravened public policy, and should be sustained. Vt. Sup. Ct., Aug. 26, 1889. Hoyt v. Hoyt. Opinion by Tyler, J. GIFTS - ASSIGNMENT OF BANK DEPOSITS.—(1) A person had the cashier of the bank write in her bank-book the following: "Pay to the order of E. S., and D. H. all of the within deposit, after my decease." Thereafter she deposited no more money, and drew out none, and the book was in possession of one of the persons named in such assigument before her death. The book contained a rule to the effect that no money should be drawn out of the bank unless depositor produced his book; and if the bank, having no notice of the loss of the book, should pay the money to a person producing it, but not entitled to the money, it could not be compelled to pay the same again. Held, that such facts were sufficient evidence of a completed assignment during the assignor's life to require submission of the question to the jury. (2) Such writing alone was not sufficient to create a vested interest in the assignees, requiring only the death of the depositor to entitle them to possession of the money. It is claimed by appellant that the making of the assignment was of itself sufficient to create a vested interest in defendants, and cases are cited in support of that claim. See Ells v. Secor, 31 Mich. 185; Gerrish v. Institution, 128 Mass. 159; Davis v. Ney, 125 Mass. 590; Martin v. Funk, 75 N. Y. 134; Ray v. Simmons, 11 R. I. 266; Blasdel v. Locke, 52 N. H. 238; Harris v. Hopkins, 43 Mich. 272. We think there should be some evidence in addition to the writing to show that it was regarded by its maker as a completed transaction, and that according to her intent nothing but the lapse of time was required to give to defendants the right to the possession of the money. As already stated, a delivery of the bank-book containing the assignment, in view of the rule of the bank quoted and other facts shown of the record, would be evidence that decedent regarded the transaction as completed on her part. (3) It is contended on the part of appellee that the assignment was so drawn as to be revokable, and the case of Basket v. Hassell, 107 U. S. 602, is cited as sustaining that position. In that case a certificate of deposit was indorsed by its owner during his last sickness as follows: Pay to Martin Basket, of Henderson, Ky., no one else; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself. H. M. Chaney." After making this indorsement, Chaney delivered the certificate to Basket, and died. The court speaks of the transaction as being, "in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which as is shown by all the authorities, and upon the nature of the case, cannot be valid as a donatio mortis causa, even where it is payable in præsenti, unless paid or accepted while the donor is alive." But there is a marked difference between the effect of the indorsement in that case and the assignment in this. While in that case the indorsed certificate was delivered, yet the language of the indorsement showed clearly that it was not to take effect in case the indorser recovered. As stated by the court, the donor attached to his indorsement and delivery a condition precedent, which must happen before it became a gift. In this case the conditions related to the funds may operate as an equitable assignment of them to the amount of the order, and that notice of the check or order given to the holder of the funds would be sufficient to hold them, even without an acceptance. Manning v. Mathews, 70 Iowa, 504; County of Des Moines v. Hinkley, 62 id. 638; Roberts v. Corbin, 26 id. 316. In Bank v. Railway Co., 52 id. 378, this question was considered, and the authorities to some extent reviewed, and the following, among other conclusions, announced: "That an order upon the whole of a particular fund, through not accepted, will operate as an equitable assignment of the fund, and bind it in the hands of the drawee after notice; but that such other does not possess the property of negotiability." In this case the entire fund on deposit was assigned and the bank had due notice of that fact. By the terms of the deposit it could be drawn out only when the book should be produced. The evidence tends to show that the book was delivered to defendant by decedent in her life-time. If this was done, or the assignment was in any other manner given effect, the ownership of the money evidenced by the book was vested in defendants, subject to the happening of a future event before the right to withdraw the money from the bank should be perfected. Iowa Sup. Ct., Oct. 11, 1889. Schollmier v. Schoendelen. Opinion by Robinson, J. MISTAKE- - MUTUAL BREACH OF COVENANTS. - In an action for breach of covenants, defendant, who had conveyed certain land to plaintiff's testatrix, to part of which he had no title, alleged that as to that portion the deed was drawn by accident or mutual mistake, and showed that he was illiterate; that the deed was not read to him, and that he signed it supposing it covered only the property owned by him east of a stone wall, as orally agreed between him and plaintiff's testatrix; but did not claim that plaintiff, who drew the deed as agent for his testatrix. acted unfairly. There was evidence that plaintiff honestly intended to describe what the oral agreement called for, assuming that defendant owned the land in dispute. Held, error to refuse to instruct the jury, that if plaintiff intended and understood that the deed he drew included the lot in dispute, the description therein was not made by accident or mutual mistake, Where the mistake of of one party as to the land to be conveyed under an oral agreement is in misunderstanding that the other owned and agreed to sell certain land, and not as to the contents of the deed or its legal effect, and the mistake of the grantor is in supposing that the deed did not contain nor convey land he did not own, it is a mistake as to the subject-matter of the contract, and not a "mutual mistake" concerning the contents or legal effect of a written instrument. The remedy when by accident or mutual mistake a written contract does not express the actual contract of the parties is by a reformation or rectification of the writing, and this is a remedy for any party to the written contract, unless the statute of frauds prevents. The remedy when the written contract does not express the understanding of the parties on account of a mistake concerning the subject-matter of it, is by a rescission or cancellation of the written contract, and this is a remedy for any party, although an option is sometimes given to the defendant in equity to have a rectification according to the claim of the plaintiff, if he prefers it. The remedy when the execution of a written instrument has been procured by fraud is by a rescission of it, or. in some a mu to insure against fire," they can only do so in cases of absolute necessity, or in grave emergencies when the removal is necessary to prevent fires and destruction of other property by fire. Under the facts of this case as disclosed by the record, we think the order of the mayor and council to remove not only the forge, but the building, went too far; that it was too sweeping in its terms. There was no necessity, as far as we can see, to remove the building at all. As far as it was necessary for them to go, even under the power which they claim, was to remove the forge. The building itself, so far as we can see from the record, was harmless. It was the sparks emitted from the forge which were dangerous to other buildings. If the forge were removed, there would be no such danger from fire. What, then, was the necessity of removing the building? What was the necessity for destroying this plaintiff's property, which he alleges cost him $300? None that we can see. We think therefore that the trial judge should have granted a part of the prayer of the petitioner, and should have enjoined the mayor and council from removing the building, on condition that the plaintiff would not use the same for a blacksmith cases, by striking out the parts fraudulentiy inserted; but the remedy is only for the party defrauded. The law concerning the reformation of contracts on the ground of mutual mistake is well stated in Sawyer v. Hovey, 3 Allen, 331. It is there said: "And it is a further and very material rule, that the court will not afford its aid or allow a written instrument to be affected by parol or other extrinsic evidence, unless the mistake is made out according to the understanding of both parties, by proof that is entirely exact and satisfactory (Andrews v. Insurance Co., 3 Mason, 10); and this for the paramount reason, that otherwise if a deed should be reformed and corrected upon proof of the mistake of one of the parties, the great injustice might be done of imposing upon the other the consequences of a contract to which he had never assented, and therefore wholly against his will." The phrase, tual mistake," as used in equity, means a mistake common to all the parties to a written contract or instrument, and it usually relates to a mistake concerning the contents or the legal effect of the contract or instrument. Insurance Co. v. Davis, 131 Mass. 316; Paget v. Marshall, L. R., 28 Ch. Div. 255; Kilmer v. Smith, 77 N. Y. 226; Bryce v. Insurance Co., 55 id.shop, and would not run his forge therein. Ga. Sup. 240; Iron Co. v. Iron Co., 107 Mass. 290; Moxey v. Bigwood, 4 De Gex., F. & J. 350; Fowler v. Fowler, 4 De Gex. & J. 250; Fallon v. Robbins, 16 Ir. Ch. 422; Bentley v. Mackay, 31 Beav. 143; Kyle v. Cavanagh, 103 Mass. 356; Spurr v. Benedict, 99 id. 463; Young v. McGown, 62 Me. 56; Diman v. Railroad Co., 5 R. I. 130; Dulany v. Rogers, 50 Md. 524; Barfield v. Price, 40 Cal. 535; Calverley v. Williams, 1 Ves. Jr. 210; Cooper v. Phibbs, L. R., 2 H. L. 149; 2 Pom. Eq. Jur., § 870. Mass. Sup. Jud. Ct., Sept. 5, 1889. Page v. Higgins. Opinion by Field, J. MUNICIPAL CORPORATION OF DANGEROUS BUILDINGS. POWER OF REMOVAL It appears from the record that Dupree was a blacksmith in the city of Brunswick, and that for the purpose of carrying on his business he erected within the city limits, but not within the fire limits, a blacksmith shop, and placed a forge therein. It was erected between a steam laundry and a grocery store. Before the building was completed, and the forge erected, it appears that Dupree received notice from some of the officers of the corporation not to erect said blacksmith shop at that place, on account of the danger of fire to the adjacent buildings. It seems that he paid no attention to this notice, but continued his work upon the building and forge; whereupon the mayor and council ordered the town marshal to remove the building and forge, because in their opinion it would greatly increase the risk of fire to the adjacent buildings. Dupree filed his petition to the Superior Court, and asked that the officers of the city government be enjoined from removing this building and forge, insisting that they had no power or authority in this summary manner to pass upon his rights, and destroy his property, without a judicial investigation. The trial judge refused the injunction, and the plaintiff excepted. The mayor and council claim that they have the right to remove this building and forge, under section 51 of their charter, which is as follows: "The said mayor and council shall have the authority and power to remove any forge, smithshop, or other structure within the city, where in their opinion it shall be necessary to insure against fire; and shall have the power to cause any stove-pipe, or any other thing or matter that will endanger the city as to fire, to be removed or remedied, as their prudence shall dictate." Without deciding whether the mayor and council have this great power conferred on them which they claim, or whether the Legislature has power to confer it, we hold that if they have such power and can remove any building in the city when "in their opinion it shall be necessary Ct., July 8, 1889. Dupree v. Mayor, etc., of Brunswick. NEGOTIABLE INSTRUMENTS-EXECUTION BY CORPORATIONS-PAROL EVIDENCE.-A promissory note containing the words "we promise to pay," and signed "San Pedro Mining and Milling Company. F. Kraus, President," shows no ambiguity on its face, as it is in law the note of the company, and parol evidence is inadmissible to show that Kraus signed it in his individual capacity. There appears to be an inconsistency in cases where it is first held that such a note ipso facto binds the per son who signed it with his official name, and yet that parol evidence might be given to make it certain. Heffuer v. Brownell, 70 Iowa, 591. This case is mentioned as the only one in which it has been decided that such signing binds the person as well as the corporation; but there would seem to be somewhat of an ambiguity in the opinion. In Bean v. Mining Co., 66 Cal. 451, it seems to have been decided that a similar note bound the company alone, but that parol evidence was proper to explain it. No case is cited, and I can find none, where it has been decided squarely that such a note bound both the company and the person whose name appears below, with the name of his office or agency, or bound the company alone, except the case of Chase v. Pattberg, 12 Daly, 171, where the note was: "We promise to pay," etc. "[Signed] English S. M. Co. H. Pattberg, Manager;" and it was decided that the company was not bound, and that Pattberg was. The authorities are generally the other way. In Draper v. Steam-Heating Co., 5 Allen, 338, the note was: We promise to pay," etc. "[Signed] Massachusetts Steam-Heating Company. L. S. Fuller, Treasurer." In Castle v. Foundry Co., 72 Me. 167, it was: "We promise to pay," etc., "at office Belfast Foundry Company. [Signed] Belfast Foundry Company. W. W. Castle, President." In Falk v. Moebs, it was: "We promise to pay," etc., "to the order of Geo. Moebs, Sec. & Treas., at," etc. "[Signed] Peninsular Cigar Co. Geo. Moebs, Sec. & Treas.," and indorsed "Geo. Moebs, Sec. & Treas." These notes were held to be unambiguous, and not explainable by parol evidence, and the notes of the companies alone. Many other cases of similar signing are found in the above cases and in the text-books, See also Mechem Ag., § 439: 1 Rand. Com. Paper, 188; 1 Dan. Neg. Inst., §§ 299-305; Gillet v. Bank, 7 Ill. App. 499; Scanlan v. Keith, 102 Ill. 634; Latham v. Flour Mills, 3 S. W. Rep. 462; Story Ag., § 154; Pars. Notes & B. 312. The question comes very near, if not quite, having been decided by this court 66 |