"final" in the last article renders the determination of the title of one of its members by the senate more binding than a similar finding by the house in regard to the title of one of its members. The result in either case is a final adjudication of the facts. "Each branch [of the city councils] shall be the final judge of the election and qualification of its members, and if any election is contested shall have the same powers to ascertain the facts as the city convention have in regard to the election of mayor." Pub. St. c. 48, § 11. If the word "final" had been omitted, it would have been difficult to distinguish between the power of each branch of a city government under this section and the power of the house under article 21. There are authorities that maintain such a distinction (People v. Hall, 80 N. Y. 117, 120-123; Com. v. Allen, 70 Pa. St. 465), but they are based on a rule of construction, and not on the intention of the legislature found as a fact from competent evidence. The rule they are based upon is that, unless the law conferring power to try election cases on a special tribunal provides expressly or by necessary implication that its action shall be final, the jurisdiction of the higher courts remains, and that of the special tribunal is concurrent, temporary, and subordinate. 1 Dill. Mun. Corp. § 202. By applying this rule to statutes with much strictness, and applying it to the constitution with much liberality, the phrase "shall be judge of elections" is made to have a meaning in the constitution it does not have in the statutes. This method of construction cannot be followed where the intent of the lawmaker is found by the just weight of competent evidence, and not by arbitrary rules of judicial origin. When the legislature enacts that each branch of a city government shall be the judge of the elections of its members, the inference is that they copied the language from the constitution, understanding that it would mean in the statute what it means in the constitution, and intending that municipal legislative bodies, created, organized, and working on the model of the state legislature, shall have the same powers as judges of the elections of their members. It is also probable that, for reasons of public convenience in the transaction of the affairs of cities, the legislative intention was to establish a special tribunal for the determination of such cases, which would act expeditiously, and without the delays ordinarily incident to judicial procedure. Peabody v. School Committee, 115 Mass. 383, 386. If its decisions were open to review in the supreme court, the inconvenience sought to be avoided would be increased, and the legislative purpose would be defeated by a rule of rule of construction. Perhaps the strongest argument against this view is found in the opinion of the court in People v. Hall, supra. Doubtless the reasoning of that opinion is competent evidence on the question of construction, but it does not counterbalance the reasons suggested for an opposite result. The statute making each branch of the city councils the final judge of the election of its members proceeds, in the same sentence, to confer and describe the powers to be em ployed in the exercise of the general power of trying election contests. "If any election is contested," each branch "shall have the same powers to ascertain the facts as the city convention have in regard to the election of mayor." The convention finds and acts upon the facts, not merely as a returning board or board of canvassers, but also in a judicial capacity. Gregg v. Goodrich, supra. By a rigorous application of the rule of construction applied in some jurisdictions, it could be held that the jurisdiction of the court on quo warranto is not excluded in express terms or by necessary implication. But what is necessary implication? It seems to have been understood to be an implication that is absolutely necessary and unavoidable. But we are aware of no ground by which a stringent rule of that kind can override the fact of legislative intent proved by competent evidence. The reference made by the legislature to the power of ascertaining the facts, vested in the convention in regard to the election of mayor, is evidence tending to show that the legislature understood the convention was judge of the election of mayor, to the same intents and purposes as each branch of the councils is judge of the elections of its members. The conflicting authorities upon this subject in other jurisdictions (People v. Hall, 80 N. Y. 117; State v. Kempf, 69 Wis. 470, 475, 34 N. W. 226; State v. Fitzgerald, 44 Mo. 425; Com. v. Allen, 70 Pa. St. 465; Echols v. State, 56 Ala. 131; Curran v. Clayton, 86 Me. 42, 29 Atl. 930; Com. v. Leech, 44 Pa. St. 332; Lamb v. Lynd, Id. 336; State v. Marlow, 15 Ohio St. 114; State v. Common Council of Rahway, 33 N. J. Law, 111, 114; Kendell v. Camden, 47 N. J. Law, 64; Peabody v. School Committee, 115 Mass. 383; People v. Metzker, 47 Cal. 524) do not furnish sufficient reasons to justify the introduction into the settled doctrine of this state relating to statutory construction of an exception in election cases. There is no reason why a contested election should not be governed by the rule applicable to a contested fence, so far as it relates to the conclusiveness of the facts found by the special tribunal authorized to try and decide the case. This proceeding is an information in the nature of a quo warranto, which is the form of action appropriate for the trial of a disputed title to office. It is not the proper form of action for the exercise of the superintending jurisdiction for the correction of errors of law. Whether other persons should be made parties in an action for the correction of such errors, it is not necessary to inquire. As this proceeding cannot be maintained for that purpose, the question is whether the defect in the form of action can be cured by an amendment, and whether such an amendment should be allowed. Amendments in the form of actions are ordinarily allowed only when justice requires such procedure. Redding v. Dodge, 59 N. H. 98; Edes v. Herrick, 61 N. H. 60, 61; Hardy v. Nye, 63 N. H. 612, 3 Atl. 631. The facts in this case show that the equitable merits are with the defendant. The number of votes intended for him is greater than the number intended for the relator. The ground upon which the latter seeks to oust the former is that the construction of the Australian ballot law for which he contends would result in his election, by the rejection of more of the votes intended for the defendant than of those intended for him. However this may be, justice does not require the allowance of an amendment for the purpose of raising the question whether the will of the people can be defeated. Information dismissed. CARPENTER, J., did not sit. The others 1. A child, having an expectant interest in her grandfather's estate, executed to him an unsealed instrument, without covenants, whereby, in consideration of $300 then paid by him to her, she relinquished all her "rights of dower and interests" that she then had, or might have, in his estate. Held, that the writing did not take effect as a release of her interest as his heir, since she had no present interest in his estate when it was executed. 2. A child received $300 from her grandfather, and in consideration thereof executed to him a writing, relinquishing all her "rights of dower and interests" that she had, or might have, in his estate. Held that, after rejecting the word "dower" as surplusage, sufficient remained to show that the sum was received as an advancement. 3. Parol evidence is admissible to show that a writing intended as a receipt only, and not as a release, was obtained by fraud. ty. Appeal from probate court, Grafton coun Proceedings by Olive C. Cass against George E. Brown, administrator of Jonas G. Brown, to compel payment of a distributive share in the estate of the deceased. From a decree for defendant, plaintiff appeals. Case discharged. Appeal from a decree of the judge of probate, disallowing the plaintiff's claim to a distributive share of the estate of Jonas G. Brown, who died intestate October 2, 1889, and was survived by his widow, a son, a daughter, and the plaintiff, the only child of a deceased daughter. Facts found by the court. June 5, 1889, Jonas G. Brown paid the plaintiff $300, and she executed and delivered to him a writing, not under seal, as follows: "Know all men by these presents, that in consideration of three hundred dollars to me this day paid by Jonas G. Brown, of Haverhill, I do hereby relinquish all my rights of dower and interest that I have, or may have, in the estate of said Jonas G. Brown." The plaintiff offered to show that while her mother, who died in 1872, was on her deathbed, Jonas G. Brown, in consideration of the right to a deed of a farm, promised her to pay the plaintiff $300; that the payment of June 5, 1889, was made in performance of this agreement, and was so stated by Brown at the time the money was paid; that, when the writing was signed by the plaintiff, Brown informed her it was a receipt for the $300 which he had agreed with the mother to pay; that the value of Brown's estate was at least $10,000 when the paper was signed and at the date of his death. The defendant claimed that the writing barred the plaintiff from a distributive share in the estate, and that the evidence offered was inadmissible. Smith & Sloane and Bingham & Bingham for appellant. Bingham, Mitchell & Batchellor and Harry M. Morse, for appellee. SMITH, J. At common law no right passes by a release but a right which the releasor had at the time the release was made. Quarles v. Quarles, 4 Mass. 680, 688. The instrument executed by the plaintiff June 5, 1889, contains no covenants, and is not under seal. She had no present interest in the estate of her grandfather at the time it was executed. The instrument, therefore, cannot take effect as a release; and if it were under seal, there being no covenants, she would not be estopped to assert her right to a share in the estate. Is the writing evidence that the sum of $300 was paid to her by way of advancement as her share in the estate of the deceased? "No personal property delivered shall be deemed an advancement unless proved to be such by an acknowledgment in writing, signed by the party receiving it," etc. Pub. St. c. 196, § 12; Gen Laws, c. 203, § 12. The plaintiff was the only child and heir of her deceased mother, daughter of Jonas G. Brown, and, in case he should die intestate, she surviving him, would inherit a share of his estate, then, and at the time of his decease, four months later, of the value of $10,000. The word "advancement" is not in the writing, nor is it necessary. No particular form of words is required by the statute to constitute an advancement, but it must appear that the money paid or property delivered was not paid or delivered as a loan or gift. It must appear that the money or property was intended as an advancement towards the child's future share of his father's estate. Fellows v. Little, 46 N. H. 27, 35. It is not claimed, and there is no evidence, that the sum of $300 was paid to the plaintiff as a loan or gift. She had and could have no right of dower in his real estate. But she had an expectant interest in his estate, dependent upon his dying intestate, and her surviving him. If this was not the in terest relinquished by the words "all my rights of dower and interest that I have, or may have, in the estate of said Jonas G. Brown," and if the sum of $300 was not received as an advancement in full of her share in his estate, it is not possible to give to the writing any effect whatever. Unless it is capable of this construction, it must wholly fail. It is not improbable that by "dower" the parties intended her expectant interest in the real estate of Jonas. But rejecting the word as surplusage, sufficient remains to show that the sum was received as an advancement. The plaintiff offers to show that the sum of $300 was not paid to her as an advancement, but in payment of a debt due to her from Jonas; that the paper signed by her was intended as a receipt, and for no other purpose; and that through fraud or mistake a release was substituted for a receipt. The defendant objects that parol evidence to show these facts would be in violation of the wellknown rule of evidence that a written contract cannot be contradicted or varied by parol. That the plaintiff's signature was obtained by fraud may be shown by parol. Fraud vitiates every contract. The evidence neither varies nor contradicts the contract. On the contrary, it shows that the parties never entered into the alleged contract, and that the writing never was the deed of the party defrauded. A general plea that a deed was obtained by fraud or misrepresentation is sufficient. 1 Chit. Pl. *537. It is a good replication to a plea of release that it was obtained by fraud. Id. *582; Hoitt v. Holcomb, 23 N. H. 535; Webb v. Steele, 13 N. H. 230; Ladd v. Rice, 57 N. H. 374; Bell v. Lamprey, 52 N. H. 41, 47. evidence was held admissible to show that the purpose for which money was paid was different from that stated in a receipt. Woods, J., said: "It is not a rule of law of recent date, or a doctrine of new impression, that a receipt may be explained by parol evidence. If its import be not what the parties designed it should be, or if, in its terms, it be not what it was intended to be, the true intent and meaning of it may be shown by parol. In fact, no principle, perhaps, is better settled than that receipts may be explained by parol, and their true meaning and purpose shown, although the same may not be in accordance with their provisions; and, in effect, in that way the terms of the written instrument may be varied, explained, limited, and controlled by parol evidence. The object of proofs let in by way of explanation is to show that instruments to be explained do not express the true intent of the parties, and to show that the same were not designed to have, and should not be allowed to have, the effect which, by their terms, they would properly have." In Insurance Co. v. Wilkinson, 13 Wall. 222, an action upon a policy of insurance, parol evidence was received to show that incorrect answers to certain questions in the application were inserted by the agent of the insurance company, without any procurement, fault, or negligence of the assured. The decision in that case might well be sustained upon the ground that a fraud had been perpetrated upon the assured. In Fuller v. Crittenden, 9 Conn. 401, 406, it was said: "The true view of the subject seems to be that such circumstances as would lead a court of equity to set aside a contract, such as fraud, mistake, or surprise, may be shown at law to destroy the effect of a receipt." In Goodwin v. Goodwin, supra, there was no contention that the terms of the writing were not what the parties intended and understood, and hence no parol ex effect. Foster, J., in the opinion remarked: "The contract is positive. It might, perhaps, be avoided by showing that the plaintiff's signature was obtained by fraud, or through a mistake or misapprehension of material facts." It will probably be found, on examination of the cases, that the conflict in the decisions is not wholly reconcilable. Is parol evidence admissible to show that the writing was signed through misapprehension or mistake? In Goodwin v. Goodwin, 59 N. H. 548, it was held that a writing partak-planation was required as to its purport and ing of the character both of a receipt and a contract may be varied and controlled by parol evidence, so far as it is a receipt; but in other respects it stands like any other written contract, and cannot be contradicted by parol evidence. Greenleaf says a receipt may be either a mere acknowledgment of payment or delivery, or it may also contain a contract to do something in relation to the thing delivered. In the former case, it is merely prima facie evidence of the fact, and not conclusive, and therefore the fact which it recites may be contradicted by oral testimony. But, so far as it is evidence of a contract between the parties, it stands on the footing of all other contracts in writing, and cannot be contradicted or varied by parol. 1 Greenl. Ev. 305. The rule that a receipt furnishes mere prima facie evidence of the facts grows out of the fact that a receipt is not a contract. "It is a mere declaration or admission in writing." Ryan v. Ward, 48 N. Y. 204, 208. In Furbush v. Goodwin, 25 N. H. 425, parol In this view of the case, without attempting to decide how far the writing in question is a receipt and how far it is a contract, we do not decide whether parol evidence is admissible in this proceeding to show that it was signed through mistake or misapprehension of material facts. The plaintiff has a full and adequate remedy by filing a bill in equity for a reformation or rescission of the writing, as an amendment to her reasons of appeal. Case discharged. CARPENTER, J., did not sit; the others concurred. SPAULDING v. TOWN OF GROTON. (Supreme Court of New Hampshire. Grafton. July 27, 1894.) HIGHWAYS - JURISDICTION OF SELECTMEN 1. Under Gen. Laws, c. 67, § 1, which provided that the selectmen of a town on petition were authorized to lay out any new highway within their town for which there should be occasion either for the accommodation of the public or the person applying therefor, the selectmen had jurisdiction to lay out a part only of a public way petitioned for, where they found that public convenience in traveling between the termini mentioned in the petition will be subserved thereby; hence a judgment of the selectmen in laying out such a way cannot be collaterally attacked. 2. Where a highway is constructed in courses other than those specified in the selectmen's return, it is necessary for plaintiff, in an action to recover for injuries caused by a defect in the way, to show that the defect was in a part of the way laid out by the selectmen. Blodgett and Chase, JJ., dissenting. Action by A. M. Spaulding against the town of Groton. Judgment for defendant. Case, for personal injuries, alleged to have been occasioned by a defective highway. Facts agreed. April 16, 1886, a petition signed by several parties was presented to the selectmen of Groton for a new highway "beginning at a stake and stones near the water trough nearly opposite the house of John Irving on the highway leading from Rumney to 'Groton Hollow,' so called, in said town of Groton; thence in a southerly direction about 100 rods to a stake and stones in said highway near the top of the last steep hill on said highway; thence following said highway as now traveled to a stake and stones in said highway near the southerly lane leading to the farm of Clinton French; thence in a southerly direction about 75 rods to a stake and stones near the school house in said Groton Hollow, in said town of Groton." May 6, 1886, the selectmen laid out a highway, and made a return thereof as follows: "We are of opinion that for the accommodation of the public there is occasion for the same, and we therefore lay out a new highway as requested in said petition, beginning at a stake at the water trough nearly opposite the house of John Irving; thence in a southerly direction 120 rods over land of Charles Spaulding; thence south over land of A. P. French's heirs 45 rods to a stake in the old highway; and the highway to be 50 feet wide." The last bound mentioned in the return is not identical with the last bound mentioned in the petition, but is about 178 rods from it in a northerly direction. The road, as constructed, runs on various courses. If it is held that the road as laid out and constructed is not a legal highway, the plaintiff is to become nonsuit; otherwise, the case is to stand for trial. George M. Fletcher, Joseph C. Story, and Bingham & Mitchell, for plaintiff. Fling & Chase and Frank N. Parsons, for defendant. PER CURIAM. 1. The judgment of the selectmen laying out the way in question, having been rendered on a petition properly before them (Gen. Laws, c. 67, § 1), is not open to collateral attack if the way laid out is substantially the way prayed for in the petition (Brown v. Brown, 50 N. H. 538; Horne v Rochester, 62 N. H. 347, 348, 350; Fowler v. Brooks, 64 N. H. 423, 424, 13 Atl. 417). If the execution of the power was wrongful or defective, it may be revised, corrected, or vacated, in a direct proceeding seasonably instituted for that purpose by any one having a rightful interest in the matter (State v. Kennedy, 65 N. H. 247, 23 Atl. 431); but, until this is done, the laying out is conclusive evidence of the duty of the town to repair the highway in a suit against it for damages incurred in consequence of the defective condition of the road (Horne v. Rochester, supra). The defendant insists that the record shows conclusively that the selectmen had no jurisdiction to lay out the way described in their return, because the petition asked for a road from one definite terminus to another, and the way laid out does not extend to the second terminus. It is claimed that the termini of the petition are definite bounds that determine with exactness the extent of the road the selectmen are authorized to lay out, and that a laying out that does not begin and end at the points arbitrarily established in the petition is absolutely void. That a petition in writing is necessary to give the selectmen jurisdiction can admit of no doubt (State v. Morse, 50 N. H. 9); and it is also true that a petition for one highway does not authorize them to lay out an entirely different one (Eames v. Northumberland, 44 N. H. 67, 69); but the question here presented is whether the selectmen have the power to lay out a way over a part of the course prayed for, when the public good does not require the whole of it. Does it necessarily follow, from the record of such a judgment, that the petitioners asked for one highway and the selectmen laid out another? If such is the legal effect of the judgment, it is not protected against collateral attack, because the selectmen had no jurisdiction of the subject-matter which the judgment purports to determine. Fowler v. Brooks, 64 N. H. 423, 13 Atl. 417. By the act of February 8, 1791, it was provided: "That at any time hereafter, when there shall be occasion for any new highways or private roads, to be laid out in any town or place in this state, the selectmen of such town or place, be, and hereby are empowered, on application made to them, if they see cause, to lay out the same, whether such highway or road be for the benefit of the town, or public in general, or for the benefit of the person or persons applying only." The act of July 3, 1829, re-enacted this statute, adding the words "in writing" after the words "made to them." Laws 1830, p. 573. Before that time the statute did not, in terms, require that the application for a new highway should be in writing; nor did it, in terms, make the jurisdiction of the selectmen depend upon the allegation in the verbal or written application of a fixed bound at each terminus of the proposed way. If the public good required the establishment of a more convenient means of communication between two places, the legislature furnished little direct evidence of a purpose to limit the jurisdiction of the selectmen in laying out the way by definite bounds, initial or final, arbitrarily established by interested parties. Un By the statute of 1791 two questions of a judicial character were submitted to the determination of the selectmen in case of an application for a public way: First. Is there occasion for a way for the public accommodation between the points indicated in the application? Second. If it is found that such occasion exists, by what route will the public good be best subserved? Having decided the first question in the affirmative, they were not required by the statute to decline to answer the second, whenever the public good would not be promoted by a road having the exact termini established by the petitioners. The laying out of the most feasible route between the two fixed bounds is not necessarily equivalent to the laying out of the best route for the accommodation of public travel between the same bounds. In the one case the test is arbitrary and unyielding; in the other it is governed by a reasonable public necessity. equivocal language in the statute would be necessary to overcome the natural presumption that the legislature intended to authorize the selectmen to employ the latter test in laying out a public highway. If the selectmen find that there is "occasion" for better means of communication between the points set out in the petition, there is no inconsistency in a judgment laying out so much of the proposed way as is necessary to fulfill the primary purpose of the application. Any other judgment would result in apparent injustice, which it is not to be presumed the legislature intended when it conferred jurisdiction upon selectmen to lay out highways "on application made to them, if they see cause." The same injustice would result by such a narrow construction of the statute as would occur if in assumpsit the plaintiff were turned out of court upon a verdict giving him less than his entire claim. Referring to a similar statute, the court say in Inhabitants of Princeton v. Worcester County Com'rs, 17 Pick. 154, 156: "But it is contended on the part of the present petitioners that the petition for a highway prayed for is one entire thing or subject-matter of judicial consideration and decision, and that it must be granted in whole or rejected in whole. As a general rule, supposing the question to stand on the general statute of 1786 (chapter 67, § 4) giving power to the court of general sessions, upon application made therefor, to lay out new highways *** without any express limitation, the construction contended for would hardly seem to be analogous to the course of judicial proceeding, where usually, upon the maxim that the whole embraces all the parts, a prayer, claim, or demand for a larger sum or quantity is taken to be a prayer or claim for all the sums or parts of which it is composed, and under such claim the party shall recover such part as he can establish title to. *** Nor is there any case, that I am aware of, in which it has been held under the statute of 1786 the court of sessions could not lay out a part of the highway prayed for." In the revision of 1842 it was provided that "selectmen upon petition are authorized to lay out any new highway * * * within their town for which there shall be occasion, either for the accommodation of the public or the person applying." Rev. St. c. 49, § 1. This language, with slight and unimportant changes, was adopted in the Compiled Statutes (chapter 52, § 1), in the General Statutes (chapter 61, § 1), and in the General Laws (chapter 67, 1), which were in force when the road in question was laid out. In Eames v. Northumberland, 44 N. H. 67, 68, it is said: "The petition being the foundation of their [the selectmen's] jurisdiction to lay out a particular highway, it follows that upon a petition for one highway they have no authority to lay out another, for there is no petition for such other highway before them, and without a petition they cannot act." It is not necessary, to controvert this proposition, to hold that the laying out of a part of the way prayed for may be authorized by the statute. The petitioners in effect ask for a new highway to accommodate public travel between two points. The public convenience or necessity is the important fact to be established to authorize the taking of private property for highway purposes (Underwood v. Bailey, 59 N. H. 480), but when that fact is found the location of such a way as will most conveniently accommodate the public travel between the termini in the petition is the way which the statute authorizes the selectmen to lay out. If they find that the public convenience will be best promoted by laying out a road over half of the route proposed by the petitioners, the verbal distinction that such a road is not the road prayed for would not be legally true. As the petitioners represent the public, the highway they ask for must necessarily be the most convenient one, under all the circumstances, for communication between the localities indicated in the petition. The most inconvenient one could not be legally laid out, nor could it be the one for the laying out of which the petition was filed. By applying excessively technical rules to the language used in highway petitions, the jurisdiction of selectmen to act may be so limited as to compel them to deny applications for new highways, simply because by a narrow definition of the word "termini" they do not think the public necessity requires the road prayed for. The result is that in many cases the laying out of a necessary highway requires a series of applications entailing long and expensive litigation, much of which would be avoided |