Knox, 7 Cush. 371; Railroad Co. v. Benedick, 5 Gray, 561; Garrett v. Handley, 4 Barn. & C. 664; Alexander v. Barker, 2 Tyrw. 140; Railroad Co. v. Walsh, 85 Ill. 58;) and it was, at least, a question for the jury whether the defendant did not undertake to be primarily liable for goods delivered to Mitchell, (Mountstephen v. Lake. man, L. R.7 Q. B. 196.) But it was shown at the trial that, whether the defendant's undertaking was one of guaranty, or was that he should be primarily liable, it was made long before the existence of the plaintiffs' copartnership, and with Wright acting for himself only; and that until after the sale to Mitchell, and after Mitchell had absconded, the defendant had no no. tice that the firm had been formed, or that Wright was a member of it, or that the lumber did not belong to Wright individually. Whether, therefore, the presiding justice might properly order a verdict for the defendant depends upon the question whether the firm can recover upon the strength of an arrangement made between the defendant and Wright individually, while the latter was in business alone, and before the existence of the copartnership, to the effect that Wright might sell lumber to Mitchell on the defendant's credit, until he gave him notice to the contrary. In Wright v. Russell, 3 Wils. 532, 2 W. Bl. 934, it was decided that when a sole trader, who held a bond for the faithful performance of duty by a clerk, took a partner into his business, the sureties were no longer responsible on the bond; and, although a seemingly inconsistent doctrine was held in Barclay v. Lucas, 1 Term R. 291, note, that case was put by Lord MANSFIELD upon the ground that the intention of the parties at the time of the making of the bond was that the sureties should be answerable in case of a change of the firm, and the case has been repeatedly questioned. See Barker v. Parker, 1 Term R. 287. The doctrine of Wright v. Russell rests upon sound precedents, and has been followed in numerous decisions. See Arlington v. Merricke, 2 Wis. Saund. 414; Bellairs v. Ebsworth, 3 Camp. 53; Walton v. Dodson, 3 Car. & P. 162; Lloyd v. Blackburn. 9 Mees. & W. 363; Rex v. St. Martin, 2 Adol. & E. 655; Robson v. Drummond, 2 Barn. & Adol. 303; Stevens v. Benning, 1 Kay & J. 168; Hole v. Bradbury, 12 Ch. Div. 886; Starrs v. Brewing Co., 12 Can. Sup. Ct. 571. The case of Waggon Co. v. Lea, 5 Q. B. Div. 149, is clearly distinguishable, for the reason that the assignees were acting for the original company in making the repairs which it had agreed to make. The case differs from those where the person with whom the contract is made is, at the time, a member of a firm, for whom he in fact contracts, although acting ostensibly as an individual, or where he is agent of an undisclosed principal; and also from those where the explicit undertaking is to be answerable to a firm, whatever change may happen in its membership. The case of Garrett v. Handley, 4 Barn. & C. 664, 666, is authority for the doctrine that a guaranty made in terms to one partner may be sued upon by his firm; but the decision was upon the ground that it appeared from the correspondence, of which the guaranty was a part, that it was intended for the benefit of the firm, and not for the individual partner alone. Without regard to precedents, there are sound reasons why the defendant's undertaking should not be held to inure to a copartnership subsequently formed. The defendant may be presumed to have known the situation of Wright, the extent of his business, and his methods of conducting it, and to have been will ing to become his debtor, and to incur such risks as were involved in becoming primarily responsible for sales from him to Mitchell. But he did not agree that, if Wright should become associated as a partner with others, he would be liable to them also for sales of the new firm. The defendant made no contract with the firm, either in fact or in intendiment of law, because Wright was not an agent of that firm, nor was it in existence, when the contract to be responsible was made. Hat Manufactory Co. v. Messinger Co., 2 Pick. 223; Machine Co. v. Brock, 113 Mass. 194. Wright, by becoming a member of the firm, could not transfer to his firm the contract of the defendant with himself. Kelner v. Baxter, L. R. 2 C. P. 174; Gunn v. Insurance Co., 12 C. B. (N. S.) 694. The defendant neither elected to contract with them, nor did he contract with Wright when Wright was in such a posi tion with reference with the other plain. tiffs as to enable the firm to rely on his agreement. He had the right of every person to elect with what parties he would deal, (Winchester v. Howard, 97 Mass. 303; Humble v. Hunter, 12 Q. B. 311) and he in fact and in law dealt with Wright alone, and is justified in saying to the plaintiffs that he has not contracted with them. For these reasons we think the plaintiffs cannot recover, and the verdict for the defendant was right. Exceptions overruled. (Supreme Judicial Court of Massachusetts. Berkshire. Oct. 20, 1892.) CRIMINAL LAW CONFESSION INDICTMENT FOR MURDER-EVIDENCE-VARIANCE-INSTRUCTIONS. 1. Where a prisoner signs the confession which has been written for him by another, he waives any objection to it as evidence, since by adopting the language he makes it his own. 2. The first and second counts in an indictment for murder alleged that the death was caused by a wound on the head, produced by a blow with an axe. The evidence showed that this wound was fatal, though it might or might not have caused instant death, and that there was also a cut in the throat, made with the axe at the same time, which would have caused death quickly from bleeding. Held, that there was no variance; the fact that the wound which caused death was in the throat instead of on the temple, if the jury so found, or that its size and shape were not exactly as alleged, being immaterial. 3. If the evidence before a grand jury points to a murder in one of several ways, they may present different counts in their indictment, stating the cause of death in the different ways, so that the averments may accord with the facts as they finally appear at the trial; and, if there is doubt as to what was the exact cause of death, a further count may be found, alleging that it was caused in some manner to | late to the first and second counts of the them unknown. 4. The third count alleged that the death was by means to the grand jury unknown. The court charged that this allegation was not to be taken into account strictly as evidence, but was to be taken in connection with any evidence tending to determine whether the grand jury did or did not know the cause of death. Held, that there was no error in the instruction. Exceptions from superior court, Berkshire county; MASON, Chief Judge, and ALDRICH and HAMMOND, Judges. William Coy was convicted of murder, and excepts. Exceptions overruled. A. E. Pillsbury, Atty. Gen., for the Commonwealth. C. J. Parkhurst and H. С. Joyner, for defendant. KNOWLTON, J. The exception to the admission of the defendants's confession because it was reduced to writing by another before it was read to the defendant and signed by him was waived. By adopting the language, the defendant made it his own. Com. v. Hildretb, 11 Gray, 327. indictment, the instructions given were sufficiently favorable to the defendant. Each of the first two counts alleges that the death was caused by a wound on the head, produced by a blow with an axe. If the wound in the throat caused the death, the defendant's testimony tended to show that it was produced by a blow from the same axe, inflicted at the same time. There is nothing to show that its size and shape differed much from the description in the indictment. This was not a variance. It is not necessary that allegations of this kind should be proved with literal accuracy. It is enough if the death is shown to have been caused in a manner or by means of the same general character as those charged. The fact that the wound which caused death was in the throat, instead of on the temple, if the jury so found, or that its size and shape were not exactly as alleged, is immaterial. It is not as if the proof showed a death by drowning when the charge was of a death by shooting. The authorities will warrant a conviction under the first or second counts on facts which the jury may have found in this case. Com.v. Woodward, 102 Mass. 155; Com. v. McAfee, 108 Mass. 458; Sanchez v. People, 22 N. Y. 147; Real v. People, 42 N. Y. 270; Bryan v. State, 19 Fla. 864; Rodgers v. State, 50 Ala. 102; State v. Fox, 25 N. J. Law, 566; State v. Hoyt, 13 Minn. 132, (Gil. 125;) State v. Lautenschlager, 22 Miun. 514; State v. Gould, 90 N. C. 658. The next exception is founded on the refusal of the court to give to the jury certain instructions requested by the defendant. These all relate to the evidence in regard to the cause of the death of the deceased person, as applied to the allegations of the indictment in that particular. There was evidence that the body when found showed a mortal wound upon the skull, apparently made by a blow with an axe, or some similar instrument. The head was nearly severed from the body, and bent back under the body. The body was substantially emptied of blood, and both legs were cut off. There was evidence that the defendant said he knocked the deceased down with an axe, and cut his throat about an hour afterwards to make sure that he was dead, and that he subsequently cut off his legs. According to the testimony he also said that the deceased "did not bleed much when he cut his throat; that he had got through bleeding; bled as much. from the head as anywhere." At the trial the defendant testified that he struck the deceased "first one way, and then the other, with the axe, and deceased fell on the floor; that he lifted him up, and put him on the bed, found that he had cut his throat considerably with one blow of the axe, and there was a bruise on his head;" that after he was dead he cut off the legs close to the body, and when he was about to bury the body he cut the neck with the axe so that he could bend the head back under the body. There was evidence from medical experts that, while the wound on the head was mortal, it would not be likely to cause death instantly, and that the blood which would flow from it would not be a very large proportion of the whole amount in the body, and that the blood would not flow after death. It was also testified that a cut in the throat severing the principal veins and arteries there would cause death by bleeding very quickly. The exception taken was to the refusal of the court to give in terms the instructions requested, and not to the in-ment if proved at the trial. The authoristructions given. Sofaras the requests re- ties do not sustain this contention. In regard to the requests which refer to the third count, the jury were correctly instructed. Under the twelfth article of the declaration of rights of the constitu❘tion of Massachusetts, "nosubject shall be held to answer for any crime or offense until the same is fully and plainly, substantially and formally, described to him." Under this provision, as well as under the rules of the common law, it is the duty of a grand jury in framing an indictment to state their charge with as much certainty as the circumstances of the case will perinit. But an indictment is merely the charge or accusation of the grand jury, and, if the evidence before them points clearly to the commission of a murder by the prisoner in one ortwo or three modes, but leaves it doubtful in which, it is proper for them to present different counts in their indictment, stating the cause of death in different ways, so that the averments may accord with the facts as they finally appear at the trial; and if, upon the evidence before them, they are in doubt as to what was the cause of death, they may properly frame a count alleging that the death was caused in some manner to them unknown. Com. v. Webster, 5 Cush. 295. The defendant's proposition, embodied in his requests for instructions, is, in substance, that such a count cannot be availed of to cover a cause of death of which there is any evidence before the grand jury, and that every cause of which there is any suggestion in the evidence must be specially alleged in the indictment, or it will not support the indict Where the whole evidence goes far enough to produce in the minds of the grand jury such a conviction in regard to the mode of death as may fairly be called "knowledge, "-such that ordinary men would be willing to act upon it as true,-they are bound to allege the cause particularly in the indictment; but if not, although it is proper to charge specifically in one or more counts such facts in the description of the offense as seem probable on the evidence, they may charge that the death was by means to them unknown. Com. v. Hill, 11 Cush. 137, 141; Com. v. Sawtelle, Id 142; Com. v. Martin, 125 Mass. 394. It has also been repeatedly decided in this commonwealth that, if the grand jury might by the exercise of reasonable diligence, bave ascertained the facts alleged to be unknown, that does not preclude them from making their allegation in this form, nor create a variance under such an allegation. Com. v. Stoddard, 9 Allen, 280; Com. v. Sherman, 13 Allen, 248; Com. v. Pratt, 145 Mass. 248, 13 N. E. Rep. 886. The defendant excepted to the following instruction: "You will understand by the observation that the statement of the grand jury that they did not know the cause of death, or that the death was caused in ways and by means unknown to them, is to be taken into account, not strictly or technically as evidence, but is to be taken in connection with any evidence on that subject before you, to determine the question as to whether the grand jury did or did not know the cause of the death of Whalen." This instruction is to be considered in connection with other instructions in reference to the same subject. In reference to this allegation, in the third count, the judge said: "The burden here is still on the government to make out its averments by satisfactory proof. * * * If you find that this statement in the third count that they did not know is unfounded, has been shown to be so, or is not proved to be true, then you cannot convict the defendant on this third count.' An allegation that a death was by means to the grand jury unknown may be divid ed into two parts. So far as it is strictly a description of the offense, it is merely an averment that the death was by means not stated. Besides that, it gives a reason for not making a more specific charge in this particular, namely, that the grand jury are ignorant in regard to it. This part of the allegation is in no proper sense a description of the offense. It relates to the form of the indictment, and is made solely as a justification of the count, which fails to state what ordinarily should be stated. It is a recital of a fact which, if true, shows that the indictment is in proper form. It has been decided that under a count of this kind, in the absence of evidence tending to show knowledge on the part of the grand jury, the commonwealth need not prove affirmatively that they were ignorant of that which is alleged to be unknown. Com. v. Thornton, 14 Gray, 41; Com. v. Glover, 111 Mass. 395, 401. In such a case the maxim omnia vite acta presumuntur may well be held applicable. Griffin v. Rising, 11 Metc. (Mass.) 339. 347; Berlin v. Bolton, 10 Metc. (Mass.) | 115, 120; Flagg v. Worcester, 8 Cush. 69, 72. The existence of facts which relate only to the form, and not to the substance, of proceedings taken by a public officer or by a legal tribunal, need not be proved in the first instance if they are recited, and if the action taken appears upon the recital to be regular and proper. Thus it will be assumed, until the contrary appears, that a special justice of a police or district court who has authority to receive complaints and issue warrants when the court is not in session, is acting within his authority when he issues and signs a warrant as special justice. Com. v. Lynn, 154 Mass. 405, 28 N. E. Rep. 289, and cases cited. If a record of a police court recites facts which authorize a special justice to hold the court, it is not necessary to prove these facts in the first instance, but there is a presumption that his action was regular, and that the facts recited, which show proper action, are true. Com. v. Fay, 151 Mass. 380, 24 N. E. Rep. 201; Id., 126 Mass. 235. On the facts stated in this indictment the action of the grand jury in presenting the third count was regular, and, on their recital of a fact which bore only on their right to proceed in that way, there was a presumption that proceedings which appeared to be warranted were regular, and that the recital was correct. When the regularity of their action was ttacked by the introduction of evidence bearing upon it, the burden was on the commonwealth to establish it. So far as the allegations of the indictment related to conduct of the defendant, the commonwealth was bound to prove them by extrinsic evidence beyond a reasonable doubt. But, in regard to the alleged ignorance of the grand jury, we are of opinion that the jury should consider the evidence in connection with the fact that the action of such a tribunal, under the official oaths of its members, comes with it a presumption of regularity. We see no error in the instruction. The final instruction of the judge in regard to the statement of the prisoner in his address to the jury was in acccordance with the request of the prisoner's counsel, and if there was any error in the original reference to the statement it was corrected in such a way that the defendant was not injured by it. Exceptions overruled. 1. In a trial for the murder of his wife, evidence was properly admitted of repeated acts of violence and threats by defendant to kill his wife during a number of years covering nearly the entire period of their married life, as bearing on the question of motive for committing the crime. 2. In such case the question of the remoteness of such acts and threats is within the discretion of the court, and its action will not be disturbed where it does not appear that it was abused. 3. Where the indictment alleges that the killing was done in a manner and by means to the grand jury unknown, a motion to quash the | acts and threats inadmissible, (Robbins v. indictment on the ground that the grand jury had knowledge of the manner and means of the killing is properly overruled where there is no evidence as to what appeared before the grand jury. 4. Evidence is admissible, in a murder case, to show the presence of sand in the mouth, nostrils, and windpipe of deceased when found, as descriptive of the condition of the body at the time. Exceptions from superior court, Hampden county. Indictment of Wallace W. Holmes for the murder of his wife. From a verdict and judgment of conviction the defendant appeals. Affirmed. A. E. Pillsbury, Atty. Gen., for the Commonwealth. A. L. Green and M. F. Druel, for defendant. MORTON, J. The only exception which || has been argued to us is that relating to the admissibility of evidence introduced by the government as to threats and acts of violence on the part of the defendant towards his wife from shortly after their marriage down to or nearly down to the time of the alleged homicide. The evidence tended to show that these acts and threats occurred, with more or less frequency, during all that time, with the exception of about 15 months in 1888 and 1889, when they were separated, and of a few months-though just how many did Robbins, 100 Mass. 150;) and these, taken The motion to quash on the ground that the grand jury knew of the cause of death, and that the indictment did not fully, formally, and sufficiently describe it, was rightly overruled. In addition to Com. v. Webster, 5 Cush. 295, the latter question has been recently considered in Com. v. Coy, 32 N. E. Rep. 4. There was no evidence as to what appeared before the grand jury, and the instructions of the court as to the averment in the second count in the indictment, that the defendant killed his wife in a manner and by means to the grand jurors unknown, were on that account sufficiently favorable to him. It does not appear for what purpose the evidence as to the presence of sand in the mouth, nostrils, and windpipe was admitted, or what use was made of it. It might have been admitted properly for either one of several reasons. It is enough to say that its admission may be justified as describing the condition of the body when found. Com.v. Brown, 14 Gray, 419, 431. Exceptions overruled. (134 Ν. Υ. 532) CITY OF BUFFALO v. BALCOM et al. not appear after they lived together (Court of Appeals of New York, Second Divi sion. Oct. 1, 1892.) : 1. In the absence of charter restrictions, a city to which land was struck off at a tax sale in default of other bidders has the power to surrender the certificates of sale to the tax payer, and to take from him a mortgage to se cure the payment of the delinquent taxes, as there is no rule of public policy which requires the city to sell such certificates of sale for cash only, or which prevents its dealing directly with the owners of the land. 2. Assuming that the city had not the legal capacity to take and enforce the mortgage, neither the mortgagor nor persons claiming under him can set up the defense of ultra vires in an action by the city to foreclose the mortgage, since they have enjoyed the benefits conferred by it, an extension of the time within which to pay the taxes. again. We think that the evidence was Appeal from superior court of Buffalo, general term. Action by the city of Buffalo against Adelbert Moot, for appellants. Philip BROWN, J. This action was brought to foreclose a mortgage upon real estate in the city of Buffalo. Certain taxes which had been imposed by the plaintiff upon the lands of the mortgagor, Philo A. Balcom, remaining unpaid, said lands were sold, and at the sale, in default of bidders, struck off to the city, and certificates of sale issued to it pursuant to the charter. The consideration of the mortgage and 1 canceled, and the land, freed from the tax, restored to the owner, and the city received the mortgage to secure payment of that which was due to it. No one has assailed the good faith of the transaction, and no statute forbids it, and we think the transaction was one within the power of the city, and must be upheld. But assuming that the city had not the legal capacity to take and enforce such a security; that, either from the general nature of the transaction or from the particular stage of the proceedings instituted to collect the tax, it was an agreement beyond its power to make and enter into,-still we are of the opinion that the appellants cannot question its validity. The appellants are a devisee of the mortgaged property under the will of the mortgagor, and a judgment creditor of a devisee. Both of them claim through the mortgagor, and their right to assail the validity of the transaction is such as he had, and no more. The effect of the mortgage was to extend the time within which Balcom could discharge the indebtedness arising from the imposition of the tax, and hence conferred a material benefit upon him, and that benefit he and the appellants have had and enjoyed, and the case is therefore a proper one for the application of the rule that one who has had the full benefit of a contract cannot be permitted, in an action founded upon it, to question its validity. A court of equity is always reluctant to decree a forfeiture, and, under circumstances such as are disclosed in this action, the plea of ultra vires does not address itself favorably to the mind of the court. lation of such certificates. The question | presented is whether the mortgage is valid. The appellant contends that, as the purpose of the contract was to secure the payment of a tax, it was not within the legal capacity of the city to take, hold, and enforce such a security, and that the contract, as to the plaintiff, is ultra vires, and contrary to public policy. Assuming all that the learned counsel has said upon the general policy of permitting a municipal corporation to accept anything but money in the payment of taxes, and the embarrassment which would follow from the general adoption of any other course, I fail to see how the state, by whose fa. vor the municipality exists, or the people who reside within the limits of the city, have any interest in arresting the operation of the contract in suit, and the recovery of the money equitably due upon it. If there has been, in respect to this contract, any wrong action on the part of the common council, any undue favor to the mortgagor, or any misappropriation of the funds of the city, the surest and most effectual way of righting the wrong done is to enforce the mortgage, and thus, to the extent of the value of the security, restore the money to the treasury of the city. But the act of taking the bond and mortgage in suit was not illegal. There is no provision of law which forbids it. The land mortgaged had been sold to pay the tax imposed upon it, and, in default of bidders, was struck off to the city, and it received and held the certificate of sale. We may assume the proceedings in relation to the levy of the tax and the sale were in compliance with the charter, as, if they were otherwise, it rested with the appellants to show it. The certificate of sale after failure on the part of the owners to redeem was to be followed by a "declaration of sale," which the charter made evidence of the purchaser's title. Whether the city, at the time of taking the mort-payment of its share of the tax, and the gage, was entitled to receive the "declaration of sale," and, under it, possession of the property, is of no importance. The certificate itself was made assignable, and the only act requisite to obtain the declaration of sale was service on the owners of notice to redeem. Such rights as the city had in the property it could, therefore, sell, and in so doing there was nothing to prevent its dealing with the owners of the land. It could sell the certificate to any one, and we are not referred to any provision of the charter which required it to sell for cash only, and certainly there is no rule of general policy which required it to do so. The general public interest was the only rule which was to guide the common council, and in all other respects it could sell and convey the same as an individual. Commissioners v. Armstrong, 45 N. Y. 234: Insurance Co. v. Stevens, 101 N. Y. 411, 5 N. E. Rep. 353. The common council could therefore sell these certifi cates to the owner of the land, and receive from him such security for the payment of the purchase price as, in the exercise of good faith and good judgment, it should deem for the best interests of the city. Such was, in substance, the trausaction in this case. The certificates of sale were It has been said that this plea should not prevail when it would not promote justice, but, on the contrary, would accomplish a wrong; and such clearly would be the result of its application in this case, as the mortgaged property would escape burden from which it would be relieved would fall upon the other taxable property in the city. Bank v. North, 4 Johns. Ch. 370, was an action to foreclose a mortgage. One of the defenses interposed was that the plaintiff, by its charter, was authorized to take mortgages for debts previously contracted only, and that the mortgage in suit was taken concurrently with the loan. With reference to this defense, Chancellor KENT held that the prohibition in the charter did not make void a mortgage given to secure the payment of money so lent, nor prevent the bank from enforcing such a mortgage; and if the corporation, in its business transactions, should pass the exact line of its power, it would rather belong to the government to exact a forfeiture of its charter than for the court to decide in a collateral way a question of misuser, by setting aside a just and bona fide contract. The same rule has been applied by the supreme court of the United States in its decisions under the national banking act. Bank v. Matthews, 98 U. S. 621; Bank v. Whitney, 103 U. S. 99. And under the statute of this state authorizing suits by taxpayers to prevent waste of the public funds, ample power exists to restrain |