prima facie, it must be met with other proof that shows a valid election or appointment to the office. The authorities cited at the bar sustain these views, and need not be reviewed.

In the present case the defendant answered that he was lawfully elected mayor of Lewiston. He pleads the usual certificate of election to the office, and his qualification thereto, and entry into the same. The certificates, however, show that without the vote of ward 5 he was not elected.

The relator, among other things, replied that the certificate of votes cast in ward 5 was false and fraudulent, and that without the vote of ward 5, according to the certificate, the defendant was not elected to said office.

Under these pleadings the relator offered to prove, among other things, that the ward officers of ward 5 "falsely and fraudulently conducted the election proceedings in said election so as to return for said respondent a larger number of votes than was actually cast for him;" that they "fraudulently made out and returned to the city clerk a false certificate of the number of ballots legally cast in said election."

The presiding justice thereupon inquired of the relator's counsel "if they claimed to be able to prove specific instances of illegal votes cast for the respondent, enough in number to equal or exceed his apparent majority, or if they were prepared to prove the number of legal ballots actually cast in that election." The counsel replied "that they were not, and claimed that, upon proof of the frauds alleged as set forth in the foregoing offers to prove, the burden of proof would then be upon the respondent to prove that he received a majority of the actual legal ballots cast in that election, or the actual state of the ballots." This burden was upon the defendant all the time, and when a ward return failed him, because it was false and fraudulent, he must rely upon other proof in its place and stead.

The presiding justice ruled that "the burden was on the relator to show a sufficient number of fraudulent or illegal votes to overcome the defendant's majority, as shown in the returns, and that, inasmuch as it appeared from the statement of facts made by the relator's counsel that the relator was unable to show that number of fraudulent votes, no useful purpose could be subserved by the introduction of the evidence, and that the petition should therefore, be dismissed."

This ruling appears to relate to evidence sufficient to overcome honest returns, and is correct in that particular, but it fails to deal with false returns. The presiding justice doubtless assumed that the relator's counsel did not rely upon showing fraudulent and false returns in ward 5, leaving defendant without any proof of the vote in that ward, and therefore not shown to have

been elected. But, on the other hand, relator's counsel, in his answer to the court, did rely upon showing fraudulent returns in ward 5, and claimed, in substance, that on proof of that fact he would be entitled to judgment; and so he would have been, unless defendant could otherwise show a legal vote in his favor, sufficient to elect him. The presiding justice should have called for proof of the fraudulent returns in ward 5, instead of dismissing the petition. This was error.

Exceptions sustained.

PETERS, C. J., and WALTON, LIBBEY, and FOSTER, JJ., concurred.

(85 Me. 278)

PENLEY et al. v. CITY OF AUBURN. (Supreme Judicial Court of Maine. Jan. 27, 1893.)

MUNICIPAL CORPORATIONS - Streets-ULTRA VIRES CONTRACT.

1. Towns and cities are required by law to keep their roads and streets so that they shall be safe and convenient for travelers. Whatever their legal duty requires of them in that regard, they are bound by law to do. and cannot bind themselves to do more.

2. A street in the city of Auburn was incumbered on one side by buildings projecting into it. On the other side the abutters deeded a narrow strip of land to the city as a consideration for its covenant to remove these buildings from within the street, and keep the same open and wrought its whole length, including the strip conveyed to it. In a suit upon the covenant, held, that it was ultra vires, and void; also, that the land, having been conveyed without consideration, should be returned.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Action by Albert M. Penley and others against the city of Auburn for breach of covenant. From a judgment pro forma overruling its demurrer to the declaration, defendant brings exceptions. Exceptions sustained.

The declaration alleges that the defendant city, on the 11th day of March, 1889, in consideration of the conveyance to it by Frances C. Little and others of a strip of land on the westerly side of Main street, in said city, to be used in straightening and widening said Main street, covenanted and agreed with the said Frances C. Little and others "to cause the land on the opposite side of said Main street, which had before that time been occupied partly by adjacent landowners for private uses, to be taken and used for a street, according to the location of said street at said point as determined by the county commissioners of the county of Androscoggin, by their survey made in September, 1888; the purpose of said covenant and agreement, as therein expressed, being to obtain and secure for the public use the full width of said street, to which the city of Auburn was then legally entitled, according to the location

of said street, as it then existed; and the said defendant city did, for the same consideration, further covenant and agree that thereafter said street at said point should be maintained at not less than its (then) present width, in addition to the strip conveyed to the said city as aforesaid;" and that all the rights and interest of Frances C. Little and others under said covenants have been assigned by them to the plaintiffs. That the defendant city "has wholly neglected and refused to fulfill its covenants and agreements as aforesaid; yet it has, during all the time from the conveyance of said strip of land to it, received, used, and occupied and had the benefit of the same."

To this declaration the defendant demurred generally.

McCann & Verrill and N. & J. A. Morrill, for plaintiffs. C. B. Mitchell, City Sol., for defendant.

HASKELL, J. A street in Auburn was incumbered on one side by buildings projecting into it. On the other side the abutters deeded a narrow strip of land to the city as a consideration for its covenant to remove these buildings from within the street, and keep the same open and wrought its whole length, including the strip of land conveyed to it. In a suit upon the covenant, it is objected that it was ultra vires and is void.

The objection is well taken. If public convenience and necessity required the street to be kept open its whole width, it was the duty of the city to keep it so. If not, the city was neither required to do it, nor could it execute a valid covenant to do it. Whatever its legal duty was, it was bound to do, and could bind itself to do no more.

No case has been cited that holds a municipal corporation liable to an individual on its covenant to perform a municipal duty required of it by law; and it is common learning that the covenant of a business corporation, even, to do an act beyond its chartered powers, is void, as ultra vires. Davis v. Railroad Co., 131 Mass. 258; Thomas v. Railroad Co., 101 U. S. 71; Green Bay, etc., R. Co. v. Union Steamboat Co., 107 U. S. 98-100, 2 Sup. Ct. Rep. 221; Bailey v. Methodist Episcopal Church, 71 Me. 472.

The law imposes a duty upon municipal corporations to keep their roads and streets so that they shall be safe and convenient for travelers, under penalty of indictment and fine. Rev. St. c. 18, § 52. That is their whole duty. The law requires no particular width for the traveled part of the way. That is governed by the necessities of travel in each particular case. Baldwin v. Bangor, 36 Me. 518; Bryant v. Biddeford, 39 Me. 193; Farrell v. Oldtown, 69 Me. 72; Wellman v. Dickey, 78 Me. 29, 2 Atl. Rep. 133.

The traveler may use any part of the way to travel upon, and, if obstructed in the ex

ercise of that right, has a remedy against the person unlawfully placing the obstruction there. Dickey v. Telegraph Co., 46 Me. 483; Parsons v. Clark, 77 Me. 476.

If the way be incumbered by buildings or fences or otherwise, so as to create a common nuisance, it may be indicted and abated; and if an individual suffers any special and peculiar damage to himself from such nuisance, beyond that suffered by the public, or damages, if the nuisance be private, the law gives him a right of action therefor. Rev. St. c. 17, §§ 5-13; Dickey v. Telegraph Co., supra; Brown v. Watson, 47 Me. 161; Davis v. Weymouth, 80 Me. 307, 14 Atl. Rep. 199; Holmes v. Corthell, 80 Me. 31, 12 Atl. Rep. 730; Jackson v. Castle, 80 Me. 119, 13 Atl. Rep. 49; Id., 82 Me. 579, 20 Atl. Rep. 237.

The duty of the municipality is commensurate with the necessities of public travel. When that is served, and the way is made safe and convenient therefor, municipal liability ends. If the way is then incumbered, to the nuisance of individuals or the public, remedies against others than the municipality must be sought.

In the case at bar the plaintiffs' assignors had conveyed land to the city as a consideration for its covenant in suit, that is adjudged void as ultra vires. The plaintiffs have been guilty of no fraud, and are not in fault. The land was conveyed, therefore, without consideration, and should be returned. Morville v. Tract Soc., 123 Mass. 129; Chapman v. County of Douglass, 107 U. S. 348, 2 Sup. Ct. Rep. 62; Salt Lake City v. Hollister, 118 U. S. 256-263, 6 Sup. Ct. Rep. 1055. Exceptions sustained. Demurrer sustained.

brings exceptions, and moves for a new trial. Motion and exceptions overruled.

The defendant pleaded the general issue, with a brief statement alleging, in substance, that the alleged pauper, at the time when the supplies were furnished him, was sick at the house of his parents, who were of sufficient ability to support and maintain him, and were bound by law to do so.

The presiding justice ruled that the facts alleged in the brief statement, if proven, would be no defense, and so instructed the jury, who returned a verdict for the plaintiff for $433.52. The verdict included the bills incurred for an attending physician and nurse, which had been duly rendered, but not paid.

C. B. Mitchell, City Sol., for plaintiff. Edgar M. Briggs, City Sol., for defendant.

HASKELL, J. Action for pauper supplies. The pauper fell grievously sick at his father's house, and the jury found that he was "destitute," under appropriate instructions, to which no exception is taken. The only exception is to the ruling, in substance, that the ability of kindred, liable to contribute for the support of paupers, under Rev. St. c. 24, §§ 16-19, cannot be set up as a defense, by the town where the pauper has his legal settlement, to a suit of the town that furnished the relief.

No authority is cited in support of the point taken in defense. Rev. St. c. 24, § 35, requires overseers of the poor to relieve persons found destitute in their towns, who have no pauper settlement therein, and gives an action against the town where the pauper's settlement is to recover the expenses so incurred, and also provides that such expenses "may be recovered of the kindred in the manner before provided in this chapter." Two remedies are given,-one against the town liable, and the other against the kindred. Either may be pursued. It should be noticed that the last remedy allows only expenses incurred within six months before filing complaint in court to be recovered, and then to the extent only of the kindred's ability, considering their own necessities. Courts do not relieve destitution by creating it. It would be unreasonable, therefore, to send a town, not liable for the support of a pauper, after his kindred, for expenses incurred to relieve his destitution, when the liability for his support belongs to another town. The town may elect to call upon the kindred, but is not obliged to do so. It may require the town liable, to support its own paupers, and leave it to deal with the kindred as it may choose to do. The case of Salem v. Andover, 3 Mass. 442, seems to be in point, although decided upon statutes differing from

ours.

The pauper, an adult, fell terribly sick with some loathsome disease at his parents' home. They became worn out and completely prostrated with continuous care of

him, so that he lay destitute, and the overseers took him in charge. He could not be moved. He needed medical attendance, medicines, nursing, and food. All these the city of Auburn furnished, at his own solicitation. No more was furnished than necessary. All the supplies furnished had been paid for by the plaintiff but the bills of the city physician and of Mrs. Ross for care and board, and these had been approved by the overseers, and were payable. The liability to pay them was a cause of action, precisely as if they had been paid. Fayette v. Livermore, 62 Me. 234; Westfield v. Southwick, 17 Pick. 68. Their reasonableness was passed upon by the jury, who heard the case patiently, and decided it correctly. Motion and exceptions overruled.

PETERS, C. J., and WALTON, LIBBEY, and FOSTER, JJ., concurred.

(85 Me. 298)

STACKPOLE et al. v. PERKINS.

(Supreme Judicial Court of Maine. Jan. 27, 1893.)

NEW TRIAL-NEWLY-DISCOVERED EVIDENCE. In an action for breach of warranty in the sale of a horse, the breach relied on was a quarter crack. The verdict was for the defendant. An important witness relied on by the defendant was the smith who usually shod the horse prior to the sale, and testified that the horse had no quarter crack. A witness, newly discovered, testifies that the smith, after the sale, told him that it had a quarter crack before the sale. It appearing doubtful whether the verdict is sustained by the weight of evidence, and other witnesses being produced, since the trial, who testify that they saw the quarter crack before the sale, the court consider that a new trial be ordered. (Official.)

Action by Charles T. Stackpole and another against Albert H. Perkins. Defendant had judgment, and plaintiff's move for a new trial. Motion sustained.

Baker, Baker & Cornish, for plaintiffs. Heath & Tuell and Walton & Walton, for defendant.

HASKELL, J. This is an action for breach of warranty in the sale of a horse. The verdict was for defendant. A motion for new trial is made, because the verdict is against the weight of evidence, and because of evidence newly discovered since the trial. The unsoundness complained of is quarter crack. The warranty is admitted. The report of evidence contains more than 700 printed pages. Photographs of the foot, taken after the sale, are shown.

A careful consideration of the evidence used at the trial makes it extremely doubtful whether the verdict is sustained by the weight of it.

Witnesses are produced who testify that they saw the quarter crack before the sale. If their testimony be true, the verdict should

not stand. We have not seen them and heard them testify. We think their credibility should be passed upon by a jury.

It is objected that their testimony is cumulative, and not newly discovered. We think it is newly discovered. In one sense it is cumulative. It tends to prove the one fact in dispute,-the existence of the quarter crack. The evidence of plaintiffs at the trial did. In this respect it is cumulative. But, on the other hand, it tends to prove independent facts,-what each witness saw at different periods of time before the sale,leading more or less strongly to the inference of unsoundness at the date of sale.

However this may be, there is one piece of evidence that, if true, destroys, or at least impairs, the testimony of one of the most important witnesses called for the defendant at the trial, not open to this objection.

At the trial, the smith who had usually shod the horse for its owner during the summer, prior to his sale of it, in December, testified that the horse had no quarter crack. Of all men this witness must have known the fact. His evidence must have had great weight with the jury. A witness is produced who testifies that the smith, after the sale of the horse, told him that it had a quarter crack before the sale. This witness is newly discovered, and his evidence is not cumulative in a legal sense. If believed, his testimony must substantially destroy the evidence of a witness at the trial, whose testimony may have been considered of controlling weight. It may be said that, without the testimony of the smith, the defendant should prevail; that the destruction of his testimony does not prove the quarter crack. True, but the absence of his testimony would be a strong factor in the plain

tiff's case.

The price paid for the horse was large, said to exceed $2,000. The photographs show quarter cracks of long standing. Some of the witnesses say the horse had a block foot, slightly drawn at the quarters. On the whole, we think a new trial should be ordered.

Motion sustained.

PETERS, C. J., and WALTON, LIBBEY, and FOSTER, JJ., concurred.

(156 Pa. St. 320)

KREPPS et al. v. MITCHELL et al. Appeal of THOMPSON et al. (Supreme Court of Pennsylvania. July 19, 1893.)

EJECTMENT · OUSTING OF PARTY NOT OF RECORD -JUSTIFICATION.

1. Where a person has asked leave to intervene and defend in ejectment, and has been refused permission, the ousting, by a writ of habere facias, directed to defendant in ejectment, of one who claims under such person, is without justification.

2. Plaintiff's contention in such case, that, inasmuch as defendant was in possession at v.27A.no.4-11

the beginning of the action, such person's possession, coming later, must have been gotten under defendant, and that the ousting was therefore proper, will not avail.

Appeal from court of common pleas, Fayette county; Nathaniel Ewing, Judge.

Ejectment by Ada O. Krepps and others against Robert Mitchell and another. Samuel Thompson asked leave to intervene and defend. Motion denied. There was judgment for plaintiffs. Under a writ of habere facias, Luther C. Richie, claiming as tenant under said Thompson, was ousted. Said Thompson and Richie then petitioned for a writ of restitution. From an order discharging the rule for restitution, petitioners appeal. Reversed.

Edward Campbell, for appellants. G. W. K. Minor, R. H. Lindsey, and R. P. Kennedy, for appellees.

MITCHELL, J.

We gather from the paper books and the arguments that this is only one of a series of suits involving the claims of the parties, and it may be that, on the merits of the controversy, the result is right, but the steps by which it was reached cannot be defended. The ejectment was by Krepps against Mitchell. The appellant Thompson asked leave to intervene and defend, on the ground that Mitchell was in under him, but, this being opposed by Mitchell, leave was refused. This was a conclusive adjudication for all purposes in this case that Thompson's title was not in question, and that he could not be affected by the result of it. Verdict and judgment having been obtained against Mitchell, a habere facias issued to put plaintiff in possession. This writ was of no force whatever against any one but Mitchell and those in privity of title with him; yet under it the sheriff ousted Richie, who held under Thompson, and, of course, took away the latter's possession. For this there was no justification whatever. The sheriff's writ was against Mitchell, and, unless he found Mitchell in possession, he was bound to ascertain whether the occupant held under him or not, and, if not, his writ gave him no authority to go further. If the tenant held under Mitchell, the sheriff could put him out, but his return should set forth that fact, which is essential to sustain his action. The return in the present case did not set out that Richie was tenant under Mitchell, nor was that the fact. It did not follow, as is argued, that because Mitchell was in possession at the commencement of the ejectment, and Thompson or his tenant got possession later, they got it under Mitchell. It might have been got adversely, or even from plaintiff himself, for all that ap pears. How it was got, and by what title it was supported, Thompson was denied an opportunity of showing. He could not be dispossessed by such a proceeding. The

1. Defendants claimed that plaintiff, the assignee of a contract to cut timber for them, was violating the contract in such manner as to entitle them to rescind, and took possession of the land by force. The plaintiff claimed that he was acting under the contract, and ousted defendants. The parties then came together, agreed on a settlement of the controversy, put its terms in writing, which they signed and partly carried out. Held, that such an agreement was not an accord, but a compromise, and, as such, a binding contract.

2. The parties to a contract may at any time rescind it, in whole or in part, by mutual consent, and the surrender of their mutual rights is sufficient consideration.

3. The refusal of leave to file an amended affidavit of defense during the trial is not the subject of exception, since the office of such an affidavit is merely to prevent a summary judgment, and it is not before the court on the trial unless put in evidence as an admission against the party making it.

Appeal from court of common pleas, Clearfield county.

Action by Jacob Scott Flegal against Hoover, Hughes & Co. From a judgment for plaintiff, defendants appeal. Reversed.

Plaintiff's assignors made a contract on May 8, 1891, with defendants, for cutting timber on certain land, and, after operating for some time, assigned their interest to plaintiff, who gave them a bond to secure them from loss by reason of liability on the original contract. Plaintiff worked for some time, when defendants made complaints of his manner of doing the work. Defendants then directed their workmen to take possession of the premises, and declare the contract forfeited, and this was attempted to be done by the men taking possession of a portion of the timber camps, but they were only in possession about two hours when they were ejected by plaintiff's employes, at his direction, and plaintiff resumed possession, and was not afterwards disturbed. On the following day, May 5, 1892, plaintiff, with his attorney, and one of appellants, with an attorney, met for the purpose of an adjustment of the difficulties. After due deliberation, a contract in writing was entered into, whereby it was agreed that the contract dated 8th May, 1891, should be, and it was thereby, surrendered up and canceled; that defendants should pay plaintiff $350 in full for all improvements made on the premises, and should pay him on a settlement for all work done under the contract according to the terms thereof, and should deliver up the bond of $5,000, dated 15th September, 1891, Flegal to give up

At

possession on the 16th of same month. various times from then till 15th July, the. parties attempted to settle the balance due under the old contract, but were unable to do so. The bond of $5,000 was not delivered up, as it had been lost. On the 15th July, 1892, this suit was brought on the original contract, Flegal seeking to recover the balance due on account, the value of his camps, sleds, camp furniture, and fixtures, and roads built, together with profits which might have accrued had he finished the contract.

A. L. Cole, for appellants.

S. V. Wilson and A. H. Woodward, for appellee.

An amendment of the affidavit of defense should be allowed during the trial. Barr v. McGary, 131 Pa. St. 406, 19 Atl. Rep. 45; Heller v. Insurance Co., 151 Pa. St. 105, 25 Atl. Rep. 83; Milligan v. Browarsky, 147 Pa. St. 155, 23 Atl. Rep. 398.

MITCHELL, J. This case was unfortunately tried on a wrong basis throughout. It was assumed that the agreement of May, 1892, was an accord, and, as its terms had not been fully carried out, that there had been no satisfaction; that the agreement was therefore inoperative, and the parties were remitted to their rights and liabilities under the original contract. This was a radical error. The agreement of May, 1892, was a compromise of disputed rights. The defendants claimed that the plaintiff was violating the contract in such manner as to entitle them to rescind, and they had in fact taken possession of the land a short time before by force. The plaintiff, on the other hand, claimed that he was pursuing his contract rights, and he had in turn ousted the defendants by force from the land. The parties then came together, agreed upon a settlement, put its terms in writing, which was signed by both, and partly carried out. Such an agreement is not an accord, but a compromise, and is as binding as any other contract. But it was not necessary to the validity of the agreement of May, 1892, that there should have been even a compromise of disputed rights. The parties to a contract may at any time rescind it, either in whole or in part, by mutual consent, and the surrender of their mutual rights is sufficient consideration. That is what the parties did in the present case, and their rights must be determined exclusively by the agreement of May, 1892. All questions of defendants' previously asserted right to rescind the first contract, and the reasons for it, and of the value of improvements, are irrelevant. The parties have made a final adjustment of all these matters, and the original contract of 1891 is of no further efficacy except as a guide in determining how much was due under it for the logs and bark mentioned in the agreement of 1892. The suit was properly