« ForrigeFortsett »
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 niotions 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,
v. 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 judg. merely, which could be corrected upon moment, 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
It is contended that there was no com- fallen-I don't remember her exact words, mon-law undertaking or agreement proved. but substantially— from grace,' I think by The evidence upon this branch of the case is accident, and she hoped very much I would undisputed, and is substantially as follows: not press him or do anything to injure him The deputy-sheriff, McGonigle, testified that in this case any further than absolutely neche arrested Holt, and immediately afterwards essary, and not to do anything that I could told him the amount of bail that was required, avoid doing.” He further testified that he and that afterwards they went and saw Mrs. did use his endeavors to have Mr. Holt reSterling, the defendant in this action. That turn to Carr & Hobson, and that he did not Holt asked her if she would go on a bond, issue the executions upon the judgment soonand she said she would if she could be of any er than he did because he desired to do all use to him. That they then went to Mr. Lo- that he could in the matter for Holt, and that gan's house, the attorney for the plaintiff in he had been beseeched by the defendant not that action. Had a talk with him, and the to do anything, but to do all that he could for bond was partially filled out. They then re- him, and not press or injure him on that acturned to Mrs. Sterling, and she signed the count. It will be observed that the defend.' bond. She wanted to know if she would be ant requested the plaintiff's attorney not to sufficient, and was told that Mr. Logan said, press or pursue Holt in the matter. The only “Yes,” that he would accept her. That they way in which he could be pressed or pursued then returned to Logan's house, who ap- in that action was by the issuing of the exeproved the bond, and thereupon the sheriff cutions against his property and person. The discharged Holt from arrest. It is true that request was therefore, in effect, not to issue
. the defendant did not see the plaintiff or its the executions; and it appears to have been attorney before signing the bond, but her so understood by the plaintiff's attorney, for willingness to sign was conveyed to the plain- he testified that the delay in issuing the exetiff's attorney through Holt and the deputy-cution was on account of the request of the sheriff, and his consent to accept her was defendant. We are of the opinion that this conveyed back to her by the same persons. amounted to an excuse for the laches comThe undertaking was prepared, and she plained of. In the case of Toles v. Adee, 91 signed it. This appears to be sufticient to N. Y. 562–572, a similar request had been establish an agreement. Toles v. Adee, 84 made by the surety, but subsequently he died, N. Y. 222, 91 Ñ. Y.562; Goodwin v. Bunzl, and the court in that case held that it was 102 N. Y. 224, 6 N. E. Rep. 399.
but a mere notice which could be terminated, Again, it is contended that the plaintiff has and could not be deemed to continue after his been guilty of laches which, as a matter of death, when new rights intervened, and his law, would discharge the defendant as surety. liability fell on the shoulders of his executors. As we'have seen, the judgment was entered In that case it was further held that there on the 27th day of May, 1882, and an execu- were laches in not issuing the executions with tion against the property was issued on the due diligence after the death of the surety,
which operated to discharge his executors were defendants; (2) a notice of the pendfrom liability. See, also, same case, 84 N. ency of the action ìléd the same day pursuY. 222. It consequently appears to us that ant to 2 Rev. St. p. 174, § 43; (3) the joint and a question of fact was presented which should several answer of the defendants, verified have been submitted to the jury. For these January 28, 1837; (4) depositions taken in reasons the judgment is reversed, and a new the suit in November and December, 1837, trial ordered, with costs to abide event. before a master; (5) an order entered April
26, 1838, closing the proofs; (6) an order en(114 N. Y. 595)
tered May 25, 1844, substituting Charles HAYES V. NOURSE.
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.)
father of the complainants) mutually exeLIS PENDENS-SPECIFIC PERFORMANCE.
cuted an executory contract by which Kemble Where a suit for specific performance, with statutory lis pendens, has lain dormant for over agreed to sell, and McGeer to purchase, the 40 years, the complainants therein and their priv- lots for $1,200, and that September 18, 1819, ies would be effectually barred from reviving it the vendee paid $100, and November 20, as against a bona fide purchaser having no act. 1819, $100, on the contract, entered into posual notice of such suit, and who purchased 16 years after the last move had been made therein; session, and in 1819 and in 1820 expended and hence such purchaser's title cannot be reject? $2,000 in erecting a dwelling, and making ed by his vendee because of such suit. BRADLEY other improvements; that to complete the and HAIGHT, JJ., dissenting.
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 duiy 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 a verred 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, 1814, (when complainants, and Gouverneur Kemble, Will- Charles O'Connor was substituted as solicitor iam Kemble, Richard F. Kemble, Mary F. for the complainants,) and that none have Kemble, and Gertrude Kemble Paulding, been taken since May 25, 1844. He found (the wife of James K. Paulding,) the five that all of the defendants in the equity suit, children and devisees of said Peter Kemble, except Richard F. Kemble and Mary Kemble
Parrott, died prior to November 6, 1881. Heter 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 testitied: “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 sutficient 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 weil 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 anå 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 pelled the defendant in this action to accept had disappeared, and everybody came to the of the remainder of the purchase price, and conclusion that they were dead. That was convey the lots? If the answer to this questhe general opinion.'
tion be doubtful in a legal sense, by reason Gto. W. Wickersham, for appellant. w. of resting on a disputed state of facts, or on H. Newshafer, for respondent.
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 bronight 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 pend- the title, which depend solely on an unsettled en«y, make the title defective, or create a lien question of law, and decree performance on the land. Bank v. Culver, 30 N. Y. 313; when the unsettled question is decided in Wilsey v. Dennis, 44 Barb. 354; Osbaldeston favor of the validity of the title, seems not V. Askew, 1 Russ. 160; Bull v. Hutchens, 32 to have been definitely settled. Abbott v. Beav. 615; 1 Dart, Vend. (6th Ed.) 564; 1 James, 111 N. Y. 673, 19 N. E. Rep. 434; Sugd. Vend. (7th. Amer. Ed.) 592. In Bull Osborne v. Rowlett, L. R. 13 Ch. Div. 774; v. Hutchens, Sir John Romilly, the learned Fry, Spec. Perf. (3d Amer. Ed.) p. 435, § 871; master of the rolls, discussing this question, Pom. Spec. Perf. p. 281, $ 202. But it is unsaid: “It [the registered notice] was notice necessary to enter into this controversy, for of the existence of a suit in chancery, and re- the determination of the validity or reasonquired all persons dealing with the property ableness of the vendee's doubt in the case at to look at the proceedings to see whether it bar does not depend upon the decision of an did affect the property or not. Here the lis unsettled legal question. 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-1 s. 321; Bayliss v. Stimson, 21 Jones & S. 225; 1 Dart, Vend. (6th Ed.) 222. A vendee or unwritten. 14 Bacon's Works, 160. It in an executory contract for the purchase of may be safely asserted that this rule is as land has not an absolute right to a specific ancient as the earliest reported decisions of performance of the contract, but such relief the court of chancery, and it continued to be is granted or refused according to the cir- the rule of the English courts until 1839. cumstances of each case. Peters v. Dela- Preston v. Tubbin, 1 Vern. 286; Sorrell v. plaine, 49 N. Y. 362; Day v. Hunt, 112 N. Y. Carpenter, 2 P. Wm. 482; Kinsman v. Kins191, 19 N. E. Rep. 414; Fry, Spec. Perf. (3d man, Tam. 399, reversed, 1 Russ. & M. 617; Amer. Ed.) p. 10, 8 25; Pom. Spec. Perf. p: 2 Sugd. Vend. (7th Amer. Ed.) 544; 2 Fonbl. 4, § 4; Id. p. 47, § 35. The fact that all of Eq. 153. In 1839 it was enacted (chapter 11, the heirs of Arthur McGeer were infants at 1 2 & 3 Vict., amended by chapter 15, 18 & 19 the date of his death, May 25, 1825, and that Vict.) that a lis pendens should not bind a the youngest did not become of full age until purchaser or mortgagee pendente lite with1843, is not a legal excuse in 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. lIavens 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. We by the bill in equity and the accompanying do not find that this rule has ever been quesnotice of the pendency of the suit. IIis tioned in this state, but, on the contrary, it grantee (the defendant herein) succeeded to has been approvingly cited and applied. all of his rights, and a purchaser from the de- Murray v. Ballou, 1 Johns. Ch. 566; Ilayden fendant, though purchasing with notice of v. Bucklin, 9 Paige, 511; Myrick v. Selden, the suit and of the claim of the McGeers, 36 Barb. 15; Will. Eq. Jur. 251. The courts would acquire a perfect title free from their of other states have asserted and followed the claims. Bumpus. v. Platner, 1 Johns. Ch. rule. Herrington v. McCollum, 73 Ill. 476, 213; Varick v. Briggs, 6 Paige, 323, affirmed, 483; Watson v. Wilson, 2 Dana, 406; Clark. 22 Wend. 543; Griffith v. Griffith, 9 Paige, son v. Morgan, 6 B. Mon. 441, 448; Debell 315; Webster v. Van Steenbergh, 46 Barb. v. Foxworthy, 9 B. Mon. 228; Erhman v. 211; Wood v. Chapin, 13 N. Y. 509; 1 Story, Kendrick, 1 Metc. (Ky.) 146; Petree v. Bell, Eq. Jur. & 410; 2 Pom. Eq. Jur. 8 754. 2 Bush, 58; Ashley v. Cunningham, 16 Ark.
Paulding's title, and the title of purchasers 168; Mann v. Roberts, 11 Lea, 57; Bybee v. subsequent to him, not being weakened or Summers, 4 Or. 354. The text-writers state affected by actual notice of the suit, it be- the rule as laid down in the cases cited. 2 comes important to inquire as to the effect of Pom. Eq. Jur. SS 634, 640; Wade, Notice, these papers found on file, or for how long a 88 357, 359; Benn. Lis Pendens, & 418. dormant suit and a statutory notice of its The right of a plaintiff to revive and conpendency binds subsequent purchasers for tinue an action against the successors in invalue and without actual notice. The rule terest of a deceased defendant may be lost by that a purchaser pendente lite of the subject long delay in making the application, and of the litigation, if he buys in good faith and especially if the successors are purchasers in without actual notice of the claims of the good faith, and if the condition and value of litigants, is not affected by the suit pending, the property have greatly changed, and the or by the notice of its pendency, unless the only witnesses by which the facts in issue suit has been prosecuted with due diligence, could be established are dead. Cuit v. Campwas first formulated by Lord Bacon. "(12) bell, 82 N. Y. 519; Lyon v. Park, 111 N. Y. No decree bindeth any that cometh in boná 350, 18 N. E. Rep. 863. For 61 years prior fide by conveyance from the defendant be- to April 15, 1885, the date fixed for the perfore the bill exhibited, and is made no party, formance of the contract of sale, the defendneither by bill nor the order; but where he ant and his grantors had been in the exclusive comes in pendente lite, and while the suit is possession of the lots, claiming to own the in full prosecution, and without any color of entire estate by virtue of recorded deeds, allowance or privity of the court, there reg. which, in terms, conveyed the entire estate. ularly the decree bindeth; but if there were No move has been made in the chancery suit any intermission of suit, or the court made adverse to the defendants therein since April acquainted with the conveyance, the court is 26, 1838, 16 years before Paulding became a to give order upon the special matter accord- purchaser in personal good faith, and more ing to justice." Ord. 12, in Chancery, 15 than 46 years before the plaintiff in this acBacon's Works, 353. The learned editors of tion purchased. Gertrude Kemble Paulding, Bacon's Works, Spedding, Ellis, and Heath, one of the defendants, died May 25, 1841, 44 say that the main body of these ordinances years before the plaintiff's purchase, Her must have existed previous to the time of husband died April 6, 1860, 25 years before Lord Bacon, in some shape or other, written the plaintiff's purchase. Gouverneur Kemble died September 18, 1875, nearly 10 years be- tried and found guilty. And where it appears that fore the plaintiff's purchase; and William the consideration of such facts may have influenced Kemble died November 5, 1881, nearly 4 the prejudice of the respondent, the proceeding
the exercise of discretion, in fixing the penalty, to years before the plaintiff's purchase. It is will be reversed for such error. apparent that the condition and value of the
(Syllabus by the Court.) property have greatly changed. It was contracted to be sold in 1819 for $1,200, and it Error to court of common pleas, Franklin sold to the plaintiff for $26,100. It is alleged county. in the bill, and is conceded in the answer in The plaintiff in error was tried at the April the chancery suit, that the business between term, 1888, of the court of common pleas of Arthur McGeer, the vendee, and Peter Franklin county, upon a charge of contempt, Kemble, the vendor, was transacted by Will- which offense consisted in the writing of a iam Kemble, who is dead. On the 25th day certain article, and causing it to be published of March, 1885, the complainants in the suit in a daily newspaper published in the city of in chancery, if living, and, if dead, their suc- Cincinnati. At the time of the writing and cessors in interest, were, by well-settled rules publishing there was upon trial in said court of law, effectually barred from reviving and a criminal indictment, found at a previous continuing their suit against the defendant term, against one Montgomery, upon a charge in this action, who then had a good title to of changipg and altering the tally-sheet of the lot; and the plaintiff had no valid reason, Precinct A, Thirteenth ward, of the city of. in law or in equity, for failing to perform her Columbus, just after the state election of the contract. Having held that the suit in year 1885. The plaintiff in error was jointly chancery, and the papers filed in connection indicted with Montgomery, and the case was therewith, created no defect in the title or still pending against him. The article lien upon the property, it is unnecessary to charged, among other things, in substance, discuss the failure of the defendant to dis- that the grand jury which found the indictclose their existence to the purchaser. The ment referred to—the one upon which Montjudgment should be reversed, and a new trial gomery was then being tried-was called by granted, with costs to abide the event. All the judge of said court then presiding “for a concur, except BRADLEY and HAIGHT, JJ., special partisan purpose,” and “never hondissenting.
estly drawn from the box;" that the presid
ing judge, co-operating with the clerk and (46 Ohio St. 473)
prosecutor, had packed the grand jury, and MYERS V. STATE,
that the writer had, in this manner, been in(Supreme Court of Ohio. May 21, 1889.)? dicted "by rascally and infamous methods.” CONTEMPT-LIBEL OF PRESIDING JUDGE-JUDICIAL The newspaper had an extended circulation NOTICE.
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 newspaper, an article containing statements regarding read about the court-house, and in the courta judge then engaged in the trial of a cause, imput-room, all which was known to the plaintiff ing to him conduct in respect to the case upon trial in error at the time of the writing and pubwhich, if true, would render him an unfit person lishing. The article was in fact read, on the to preside at the trial of the cause, with knowledge on the part of the correspondent that such news- day of its publication, by many persons in paper has a large circulation in the county where the court-room; was much talked about withthe trial is in progress, and with reasonable ground in the bar of the court, and in the presence to believe that the same will, when published, be circulated in the court-room and about the court and hearing of the court. house during said trial, and there read, and which
A written information was presented by was afterwards, during the trial, circulated and counsel, specially appointed by the court for, read therein, is a contempt of court. 2. Such act comes within the purview of sec
that purpose, alleging against the plaintiff in. tion 5639, Rev. St. Ohio, which provides that “a error the writing and publishing of the articourt or judge at chambers may punish summarily cle in question; charging that the same was a person guilty of misbehavior in the presence of done by him to vilify, degrade, and defame or so near the court or judge as to obstruct the ad the court and its officers, including the grand ministration of justice," and may be punished summarily; and such punishment is within the jury, and to bring the court and its officers discretion of the court trying the case.
into contempt, and to obstruct the adminis3. A proceeding to punish for contempt under tration of justice in the cause upon trial, and said section, including the question whether or not the court in awarding punishment has exercised a that said acts were a contempt of court. An reasonable discretion, may be reviewed upon error. answer was filed by the respondent, which
4. The fact that the presiding judge is the sub- denied the jurisdiction of the court of the ject of libel in the article which forms the basis of subject-matter and of his person; denied any the contempt proceeding does not render him in. competent to try the complaint.
intention to commit a contempt, or to obstruct 5. Upon such trial it is competent for such the administration of justice; alleged that judge to take judicial notice of pertinent facts con- the article was written by the respondent, nected with the transaction which come within the cognizance of his own senses.
who was and had been for years a corre6. It is not competent for him to take judicial spondent of the newspaper, as an answer and notice of, and consider in his deliberations, that the comment upon a communication which shortrespondent had been guilty of another contempt of ly before had appeared in another newspaper, the same court, for which he had theretofore been
also published in Cincinnati; that the article Publication delayed by failure to receive copy. was written upon facts and information which