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The court had jurisdiction of the parties and | 29th day of November, 1882, and that against the subject-matter. This was obtained upon the body on the 7th day of December, 1883, the service of the summons and complaint. more than a year and a half afterwards. It The amended complaint in the action de- appears that Holt remained in the vicinity manded judgment for the amount for which for a long time after the entry of judgment, it was entered. The judgment, therefore, and had the execution against his body been conforms to the provisions of the section of issued he could have been taken thereon, but the Code, referred to. A party appearing in at the time that it was issued he had departed an action is entitled to notice of the motions from the county, and could not be found. subsequently made to the court, but a party This undoubtedly amounts to laches which not having appeared would not ordinarily would discharge the defendant from liability. be entitled to notice of motion. Peck v. Toles v. Adee, 91 N. Y. 571; Craig v. Parkis, Railroad Co., 85 N. Y. 246. But, if it should 40 N. Y. 181; Insurance Co. v. Wright, 76 N. be held that Holt was entitled to notice of the Y. 445; McMurray v. Noyes, 72 N. Y. 523. motion to amend the complaint, the failure But it is claimed that these laches were exto give such notice would be an irregularity cused by the defendant, and this, in our judgmerely, which could be corrected upon mo- ment, becomes the important question in the tion. It would not operate to render the case. Mr. Logan, the plaintiff's attorney, judgment void, but it would stand as a valid testified that Mrs. Sterling, the defendant, judgment of the court until set aside or came to his office, and stated that she felt a amended. Jewett v. Crane, 35 Barb. 208; considerable interest in Mr. Holt. "She said Bensel v. Lynch, 44 N. Y. 162-165. The that she requested me to use my influence to cases of Briggs v. Oliver, 68 N. Y. 336, and help Mr. Holt all that I could, and she spoke Argall v. Pitts, 78 N. Y. 243, are not in con- to me in regard to getting Mr. Holt back with flict with this view. No greater amount can Carr & Hobson, and I told her I would use be recovered of her than that stipulated in my endeavors to do so. She told me she hoped the undertaking or agreement; and whether I would not press Mr. Holt, or pursue him in she is entitled to be credited with the pay- that matter. She said that she thought Mr. ments by Holt after the action was brought Holt had fallen. That he had a very nice is not now before us for consideration. family. I think she said she thought he had fallen-I don't remember her exact words, but substantially-from grace,' I think by accident, and she hoped very much I would not press him or do anything to injure him in this case any further than absolutely necessary, and not to do anything that I could avoid doing." He further testified that he did use his endeavors to have Mr. Holt return to Carr & Hobson, and that he did not issue the executions upon the judgment sooner than he did because he desired to do all that he could in the matter for Holt, and that he had been beseeched by the defendant not to do anything, but to do all that he could for him, and not press or injure him on that account. It will be observed that the defendant requested the plaintiff's attorney not to press or pursue Holt in the matter. The only way in which he could be pressed or pursued

It is contended that there was no common-law undertaking or agreement proved. The evidence upon this branch of the case is undisputed, and is substantially as follows: The deputy-sheriff, McGonigle, testified that he arrested Holt, and immediately afterwards told him the amount of bail that was required, and that afterwards they went and saw Mrs. Sterling, the defendant in this action. That Holt asked her if she would go on a bond, and she said she would if she could be of any use to him. That they then went to Mr. Logan's house, the attorney for the plaintiff in that action. Had a talk with him, and the bond was partially filled out. They then returned to Mrs. Sterling, and she signed the bond. She wanted to know if she would be sufficient, and was told that Mr. Logan said, "Yes," that he would accept her. That they then returned to Logan's house, who ap-in that action was by the issuing of the exeproved the bond, and thereupon the sheriff discharged Holt from arrest. It is true that the defendant did not see the plaintiff or its attorney before siguing the bond, but her willingness to sign was conveyed to the plaintiff's attorney through Holt and the deputysheriff, and his consent to accept her was conveyed back to her by the same persons. The undertaking was prepared, and she signed it. This appears to be sufficient to establish an agreement. Toles v. Adee, 84 N. Y. 222, 91 N. Y. 562; Goodwin v. Bunzl, 102 N. Y. 224, 6 N. E. Rep. 399.

Again, it is contended that the plaintiff has been guilty of laches which, as a matter of law, would discharge the defendant as surety. As we have seen, the judgment was entered on the 27th day of May, 1882, and an execution against the property was issued on the

cutions against his property and person. The request was therefore, in effect, not to issue the executions; and it appears to have been so understood by the plaintiff's attorney, for he testified that the delay in issuing the execution was on account of the request of the defendant. We are of the opinion that this amounted to an excuse for the laches complained of. In the case of Toles v. Adee, 91 N. Y. 562-572, a similar request had been made by the surety, but subsequently he died, and the court in that case held that it was but a mere notice which could be terminated, and could not be deemed to continue after his death, when new rights intervened, and his liability fell on the shoulders of his executors. In that case it was further held that there were laches in not issuing the executions with due diligence after the death of the surety,

which operated to discharge his executors from liability. See, also, same case, 84 N. Y. 222. It consequently appears to us that a question of fact was presented which should | have been submitted to the jury. For these reasons the judgment is reversed, and a new trial ordered, with costs to abide event.

(114 N. Y. 595)

HAYES v. NOURSE.

were defendants; (2) a notice of the pendency of the action filed the same day pursuant to 2 Rev. St. p. 174, § 43; (3) the joint and several answer of the defendants, verified January 28, 1837; (4) depositions taken in the suit in November and December, 1837, before a master; (5) an order entered April 26, 1838, closing the proofs; (6) an order entered May 25, 1844, substituting Charles O'Connor as solicitor for the complainants. It is alleged in the bill that August 13,

(Court of Appeals of New York, Second Divis 1819, Peter Kemble and Arthur McGeer (the ion. June 28, 1889.)

LIS PENDENS-SPECIFIC PERFORMANCE. Where a suit for specific performance, with statutory lis pendens, has lain dormant for over 40 years, the complainants therein and their privies would be effectually barred from reviving it as against a bona fide purchaser having no actual notice of such suit, and who purchased 16 years after the last move had been made therein; and hence such purchaser's title cannot be rejected by his vendee because of such suit. BRADLEY and HAIGHT, JJ., dissenting.

father of the complainants) mutually executed an executory contract by which Kemble agreed to sell, and McGeer to purchase, the lots for $1,200, and that September 18, 1819, the vendee paid $100, and November 20, 1819, $100, on the contract, entered into possession, and in 1819 and in 1820 expended $2,000 in erecting a dwelling, and making other improvements; that to complete the dwelling McGeer borrowed $300 of Kemble Appeal from a judgment of the general upon an oral agreement that Kemble should term of the court of common pleas of the convey the lots to McGeer, and receive from city of New York, affirming a judgment for him a mortgage on them as security for the the plaintiff for $2,650 damages, entered on loan, and the remainder of the purchase the report of a referee. In 1819, Peter Kem- price; and that to secure Kemble until the ble owned in fee and was in possession of deed and mortgage should be exchanged Mctwo lots now known as No. 56 Marion street, Geer delivered the contract for the lots to and No. 91 Crosby street, in the city of New Kemble, who failed to convey them, and York. February 1, 1823, he died, having never returned the contract. It is further devised these lots to his five children, share alleged that McGeer continued in possession, and share alike. His will was duly probated. | paying interest on the contract, until May April 7, 1824, four of the devisees conveyed 25, 1825, when he died intestate, leaving the these lots to the fifth devisee, Mary Kemble, complainants, his heirs and only heirs at law, who recorded her deed, and subsequently then infants of tender years; and that short(the date not appearing) took possession un-ly thereafter the defendants took, and have der her deed, remained in possession until ever since retained, possession of the lots. October 5, 1854, when she conveyed the lots The defendants in the suit in chancery adto James N. Paulding, who recorded his mitted in their answer the execution and dedeed, immediately took possession under it, livery of a written contract of sale, and the and remained in possession until August 30, payment of $200 thereon, but averred that 1884, when he conveyed the lots to the de- the contract was to be performed within two fendant in this action in trust for the benefit years. They admitted that McGeer took posof creditors. March 25, 1885, the defendant session, built a house, and made improvesold the lots by public auction to the plaintiff ments, but averred that the improvements for $26,100. She paid down 10 per cent., did not cost $2,000. It was admitted in the $2,610, and $40, auctioneer's fees,-total, answer that Kemble loaned McGeer money $2,650; and contracted to pay the remainder to complete his dwelling, but it was denied of the price, and take a deed, April 15, 1885. that Kemble received the contract as security But before that date she discovered facts until a deed and mortgage could be exchanged which, she asserts, make the defendant's between the parties; and it was averred that title defective, or, at least, so doubtful that November 7, 1821, McGeer and Kemble had she is entitled to rescind the sale, and recover a settlement, and there was found due on the the amount paid. By mutual agreement the contract, for money loaned and interest, time for the performance of the contract was $1,700, which McGeer, by his bond, coveextended to May 16th, when the plaintiff nanted to pay in one year, with interest, but finally refused to take the title, demanded never paid this sum, or any part of it. In the repayment of the $2,650, and on the short, several perfect defenses to the suit are same day began this action. The facts dis- alleged in the answer. covered were: (1) A bill filed July 31, 1836, The referee in the case at bar found that no in the late court of chancery, wherein John | proceedings were taken in this equity suit beMcGeer, Thomas McGeer, Peter McGeer, an tween April 26, 1838, (when the proofs were infant, and Mary A. McGeer, an infant, were declared closed,) and May 25, 1844, (when complainants, and Gouverneur Kemble, Will-Charles O'Connor was substituted as solicitor iam Kemble, Richard F. Kemble, Mary F. Kemble, and Gertrude Kemble Paulding, (the wife of James K. Paulding,) the five children and devisees of said Peter Kemble,

for the complainants,) and that none have been taken since May 25, 1844. He found that all of the defendants in the equity suit, except Richard F. Kemble and Mary Kemble

Parrott, died prior to November 6, 1881. He ter this as a lis pendens, but could anybody also found that about 20 years ago James N. say that this was an incumbrance on the Paulding, then the owner of the lots, made property, or a reason why a purchaser should an unsuccessful effort to find the complain- not complete his purchase? All that the regants, and that it does not appear what has istration of a lis pendens does is to require become of them. The plaintiff called as a persons to look into the claims of the plaintiff witness James N. Paulding, who testified who registers it." The record before this that about 20 years before the trial of this court is barren of evidence, except such as is action he sold the lots by auction, but the contained in the papers filed in the suit. in purchaser found the papers in the chancery | chancery, tending to show that the complainsuit on file, and refused to take the title. ants in that suit ever had an interest in or Upon cross-examination he testified: "That lien upon the lots. Nevertheless this case attempt was twenty years before this sale. will be decided upon the assumptions (1) that more or less. I should think quite that. I all of the allegations in the bill were true at have not the data to give the exact date, but its date; (2) that the facts there alleged were I should think it must be twenty years ago. found by the referee in this action upon comWhen he, the purchaser at the auction sale, petent and sufficient evidence; and (3) that came to search the title, he made this objec- those facts were sufficient to have entitled the tion. I did not push it. I was astonished. complainants, in 1836, when their bill was This is the first thing I knew about anything filed, to a judgment requiring Mary Kemble, being the matter with the title. I let it go. then the owner of the legal estate, to receive I, at the time, tried to find these people, the remainder of the purchase price from the the McGeers. I employed the two men that complainants, and convey to them the lot. I thought would be most likely to find out Were it material, the defendant might well about these people. One was an agent I had complain of these assumptions, for while the then for the property. He had been agent for admissions made by Mary Kemble in her ana long while, and knew all about it. The swer to the bill in chancery, when she was other was a merchant, who had lived there the owner and in possession of the lots, are for some time, and had known these parties. evidence against the defendant, the unadmitThey did their best to find out about them, ted allegations of the complainants in their and reported to me that they could not be bill, on which the assumptions are based, are found or heard of; had not been heard of for a not evidence against him, and, besides, the great many years. The last that had been assumed facts were not found by the referee. heard of them was that the man had been a Resting upon these assumptions, could the sort of river pirate, and the woman was a complainants, if living, or, if dead, their sucdrunkard, and had been carried off to the poor-cessors in interest, in March, 1885, have comhouse or asylum, or something or other, and had disappeared, and everybody came to the conclusion that they were dead. That was the general opinion."

Geo. W. Wickersham, for appellant. H. Newshafer, for respondent.

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pelled the defendant in this action to accept of the remainder of the purchase price, and convey the lots? If the answer to this question be doubtful in a legal sense, by reason W. of resting on a disputed state of facts, or on unascertained facts, the plaintiff was not bound to take the title. Whether, in actions FOLLETT, C. J., (after stating the facts as brought to enforce the specific performance above.) A pending action brought to estab- of executory contracts for the sale of land, lish title to or a lien upon land does not of it-courts should determine doubts respecting self, nor does a duly recorded notice of its pendency, make the title defective, or create a lien on the land. Bank v. Culver, 30 N. Y. 313; Wilsey v. Dennis, 44 Barb. 354; Osbaldeston v. Askew, 1 Russ. 160; Bull v. Hutchens, 32 Beav. 615; 1 Dart, Vend. (6th Ed.) 564; 1 Sugd. Vend. (7th. Amer. Ed.) 592. In Bull v. Hutchens, Sir JOHN ROMILLY, the learned master of the rolls, discussing this question, said: "It [the registered notice] was notice of the existence of a suit in chancery, and required all persons dealing with the property to look at the proceedings to see whether it did affect the property or not. Here the lis pendens was no incumbrance if Pratt had It is assumed-without deciding the quesno right against the property, for it depended tion-that a vendee may recover money paid on the validity of his claim; for, if his claim on an executory contract for the sale of land, were idle, it could not create any incum- by proving the title so doubtful that a court brance on the property. A man might file a would not compel him to take it. Upon this bill claiming property, alleging that 60 years question see Burwell v. Jackson, 9 N. Y. ago his ancestor was seised in fee, and that 542; O'Reilly v. King, 2 Rob. (N. Y.) 587; although he had sold the property, yet he had Methodist Church v. Thompson, 20 Jones & no right to do so. The plaintiff might regis-S. 321; Bayliss v. Stimson, 21 Jones & S.

the title, which depend solely on an unsettled question of law, and decree performance when the unsettled question is decided in favor of the validity of the title, seems not to have been definitely settled. Abbott v. James, 111 N. Y. 673, 19 N. E. Rep. 434; Osborne v. Rowlett, L. R. 13 Ch. Div. 774; Fry, Spec. Perf. (3d Amer. Ed.) p. 435, § 871; Pom. Spec. Perf. p. 281, § 202. But it is unnecessary to enter into this controversy, for the determination of the validity or reasonableness of the vendee's doubt in the case at bar does not depend upon the decision of an unsettled legal question.

or unwritten. 14 Bacon's Works, 160. It may be safely asserted that this rule is as ancient as the earliest reported decisions of the court of chancery, and it continued to be the rule of the English courts until 1839. Preston v. Tubbin, 1 Vern. 286; Sorrell v. Carpenter, 2 P. Wm. 482; Kinsman v. Kinsman, Tam. 399, reversed, 1 Russ. & M. 617; 2 Sugd. Vend. (7th Amer. Ed.) 544; 2 Fonbl. Eq. 153. In 1839 it was enacted (chapter 11, 2 & 3 Vict., amended by chapter 15, 18 & 19 Vict.) that a lis pendens should not bind a purchaser or mortgagee pendente lite with

225; 1 Dart, Vend. (6th Ed.) 222. A vendee in an executory contract for the purchase of land has not an absolute right to a specific performance of the contract, but such relief is granted or refused according to the circumstances of each case. Peters v. Delaplaine, 49 N. Y. 362; Day v. Hunt, 112 N. Y. 191, 19 N. E. Rep. 414; Fry, Spec. Perf. (3d Amer. Ed.) p. 10, § 25; Pom. Spec. Perf. p. 4, § 4; Id. p. 47, § 35. The fact that all of the heirs of Arthur McGeer were infants at the date of his death, May 25, 1825, and that the youngest did not become of full age until 1843, is not a legal excuse în an action to en-out express notice thereof, unless a notice of force a specific performance of the contract, the pendency of the suit should be registered, for their failure to perform the contract of and that the registered notice should become their ancestor; and the laches which would void at the expiration of five years, unless it have barred such an action by him will bar should be re-registered. Since the passage a like action prosecuted by them. Havens of this statute the effect upon purchasers and v. Patterson, 43 N. Y. 218. Paulding hav- incumbrancers pendente lite, of a lack of ing purchased without actual notice of the diligence in prosecuting suits, has ceased to suit, or of the alleged claim of the Mc-be, in England, a living question, and only Geers, was a purchaser in good faith, and ac- occasional reference to the subject will be quired a perfect title, unless he was bound found in modern English law-books. by the bill in equity and the accompanying notice of the pendency of the suit. His grantee (the defendant herein) succeeded to all of his rights, and a purchaser from the defendant, though purchasing with notice of the suit and of the claim of the McGeers, would acquire a perfect title free from their claims. Bumpus v. Platner, 1 Johns. Ch. 213; Varick v. Briggs, 6 Paige, 323, affirmed, 22 Wend. 543; Griffith v. Griffith, 9 Paige, 315; Webster v. Van Steenbergh, 46 Barb. 211; Wood v. Chapin, 13 N. Y. 509; 1 Story, Eq. Jur. § 410; 2 Pom. Eq. Jur. § 754.

Paulding's title, and the title of purchasers subsequent to him, not being weakened or affected by actual notice of the suit, it becomes important to inquire as to the effect of these papers found on file, or for how long a dormant suit and a statutory notice of its pendency binds subsequent purchasers for value and without actual notice. The rule that a purchaser pendente lite of the subject of the litigation, if he buys in good faith and without actual notice of the claims of the litigants, is not affected by the suit pending, or by the notice of its pendency, unless the suit has been prosecuted with due diligence, was first formulated by Lord Bacon. "(12) No decree bindeth any that cometh in bona fide by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill nor the order; but where he comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance or privity of the court, there regularly the decree bindeth; but if there were any intermission of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice." Ord. 12, in Chancery, 15 Bacon's Works, 353. The learned editors of Bacon's Works, Spedding, Ellis, and Heath, say that the main body of these ordinances must have existed previous to the time of Lord Bacon, in some shape or other, written

We

do not find that this rule has ever been questioned in this state, but, on the contrary, it has been approvingly cited and applied. Murray v. Ballou, 1 Johns. Ch. 566; Hayden v. Bucklin, 9 Paige, 511; Myrick v. Selden, 36 Barb. 15; Will. Eq. Jur. 251. The courts of other states have asserted and followed the rule. Herrington v. McCollum, 73 Ill. 476, 483; Watson v. Wilson, 2 Dana, 406; Clarkson v. Morgan, 6 B. Mon. 441, 448; Debell v. Foxworthy, 9 B. Mon. 228; Erhman v. Kendrick, 1 Metc. (Ky.) 146; Petree v. Bell, 2 Bush, 58; Ashley v. Cunningham, 16 Ark. 168; Mann v. Roberts, 11 Lea, 57; Bybee v. Summers, 4 Or. 354. The text-writers state the rule as laid down in the cases cited. Pom. Eq. Jur. §§ 634, 640; Wade, Notice, §§ 357, 359; Benn. Lis Pendens, § 418.

2

The right of a plaintiff to revive and continue an action against the successors in interest of a deceased defendant may be lost by long delay in making the application, and especially if the successors are purchasers in good faith, and if the condition and value of the property have greatly changed, and the only witnesses by which the facts in issue could be established are dead. Coit v. Campbell, 82 N. Y. 519; Lyon v. Park, 111 N. Y. 350, 18 N. E. Rep. 863. For 61 years prior to April 15, 1885, the date fixed for the performance of the contract of sale, the defendant and his grantors had been in the exclusive possession of the lots, claiming to own the entire estate by virtue of recorded deeds, which, in terms, conveyed the entire estate. No move has been made in the chancery suit adverse to the defendants therein since April 26, 1838, 16 years before Paulding became a purchaser in personal good faith, and more than 46 years before the plaintiff in this action purchased. Gertrude Kemble Paulding, one of the defendants, died May 25, 1841, 44 years before the plaintiff's purchase. Her husband died April 6, 1860, 25 years before the plaintiff's purchase. Gouverneur Kemble

the consideration of such facts may have influenced
the exercise of discretion, in fixing the penalty, to
the prejudice of the respondent, the proceeding
will be reversed for such error.
(Syllabus by the Court.)

Error to court of common pleas, Franklin county.

died September 18, 1875, nearly 10 years be- | tried and found guilty. And where it appears that fore the plaintiff's purchase; and William Kemble died November 5, 1881, nearly 4 years before the plaintiff's purchase. It is apparent that the condition and value of the property have greatly changed. It was contracted to be sold in 1819 for $1,200, and it sold to the plaintiff for $26, 100. It is alleged in the bill, and is conceded in the answer in the chancery suit, that the business between Arthur McGeer, the vendee, and Peter Kemble, the vendor, was transacted by William Kemble, who is dead. On the 25th day of March, 1885, the complainants in the suit in chancery, if living, and, if dead, their successors in interest, were, by well-settled rules of law, effectually barred from reviving and continuing their suit against the defendant in this action, who then had a good title to the lot; and the plaintiff had no valid reason, in law or in equity, for failing to perform her contract. Having held that the suit in chancery, and the papers filed in connection therewith, created no defect in the title or lien upon the property, it is unnecessary to discuss the failure of the defendant to disclose their existence to the purchaser. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur, except BRADLEY and HAIGHT, JJ., dissenting.

The plaintiff in error was tried at the April term, 1888, of the court of common pleas of Franklin county, upon a charge of contempt, which offense consisted in the writing of a certain article, and causing it to be published in a daily newspaper published in the city of Cincinnati. At the time of the writing and publishing there was upon trial in said court a criminal indictment, found at a previous. term, against one Montgomery, upon a charge of changing and altering the tally-sheet of Precinct A, Thirteenth ward, of the city of. Columbus, just after the state election of the year 1885. The plaintiff in error was jointly indicted with Montgomery, and the case was still pending against him. him. The article charged, among other things, in substance, that the grand jury which found the indictment referred to the one upon which Montgomery was then being tried-was called by the judge of said court then presiding "for a special partisan purpose," and "never honestly drawn from the box;" that the presiding judge, co-operating with the clerk and prosecutor, had packed the grand jury, and that the writer had, in this manner, been indicted "by rascally and infamous methods." The newspaper had an extended circulation throughout the state, including the county of 1. The furnishing by a correspondent for pub- Franklin, and was freely circulated, sold, and lication, and procuring to be published in a news-read about the court-house, and in the courtpaper, an article containing statements regarding a judge then engaged in the trial of a cause, imput ing to him conduct in respect to the case upon trial which, if true, would render him an unfit person to preside at the trial of the cause, with knowledge on the part of the correspondent that such newspaper has a large circulation in the county where the trial is in progress, and with reasonable ground to believe that the same will, when published, be circulated in the court-room and about the courthouse during said trial, and there read, and which was afterwards, during the trial, circulated and read therein, is a contempt of court.

(46 Ohio St. 473)

MYERS v. STATE.

(Supreme Court of Ohio. May 21, 1889.)1 CONTEMPT-LIBEL OF PRESIDIng Judge-JudICIAL NOTICE.

2. Such act comes within the purview of section 5639, Rev. St. Ohio, which provides that "a court or judge at chambers may punish summarily a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice," and may be punished summarily; and such punishment is within the discretion of the court trying the case.

3. A proceeding to punish for contempt under said section, including the question whether or not the court in awarding punishment has exercised a reasonable discretion, may be reviewed upon error.

4. The fact that the presiding judge is the subject of libel in the article which forms the basis of the contempt proceeding does not render him incompetent to try the complaint.

5. Upon such trial it is competent for such judge to take judicial notice of pertinent facts connected with the transaction which come within the cognizance of his own senses.

6. It is not competent for him to take judicial notice of, and consider in his deliberations, that the respondent had been guilty of another contempt of the same court, for which he had theretofore been

1Publication delayed by failure to receive copy.

room, all which was known to the plaintiff in error at the time of the writing and publishing. The article was in fact read, on the day of its publication, by many persons in the court-room; was much talked about within the bar of the court, and in the presence and hearing of the court.

A written information was presented by counsel, specially appointed by the court for, that purpose, alleging against the plaintiff in error the writing and publishing of the article in question; charging that the same was done by him to vilify, degrade, and defame the court and its officers, including the grand jury, and to bring the court and its officers into contempt, and to obstruct the administration of justice in the cause upon trial, and that said acts were a contempt of court. An answer was filed by the respondent, which denied the jurisdiction of the court of the subject-matter and of his person; denied any intention to commit a contempt, or to obstruct the administration of justice; alleged that the article was written by the respondent, who was and had been for years a correspondent of the newspaper, as an answer and comment upon a communication which shortly before had appeared in another newspaper, also published in Cincinnati; that the article was written upon facts and information which

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