had come to his knowledge, which he believed to be true; that the article was read, before its publication, to a member of the bar of Hamilton county of high standing, who gave the opinion that the publication of it would not be a contempt of court, which was concurred in by another lawyer of experience; and that the article was written under the influence of feelings engendered by his personal knowledge of the fact that a grievous and irreparable wrong was being done him in connection with the prosecution of the case referred to. A trial was had, at which evidence was introduced by both parties. The court also took judicial notice of many matters, some of which are quoted in the opinion. The respondent was found guilty, and sentenced to pay a fine of $200 and costs, be imprisoned 90 days in the county jail, and stand committed until the fine and costs should be paid. R. A. Harrison, E. L. Taylor, and T. E. Powell, for plaintiff in error. J. T. Holmes and J. H. Collins, for the state. of Cincinnati, though dated at Columbus. But the publication was in the court-room, as well as elsewhere. It was intended to have effect, and did have effect, in the courthouse at Columbus; and the writer was just as much responsible for that effect as though he had, in the court-room itself, and while the trial was progressing, circulated and read aloud the article, or uttered the libelous words verbally. The acts were thus done, if not in the very presence of the court, at least so near thereto as to obstruct its business. For violation of the foregoing section of the statute the punishment is within the discretion of the court. Section 5645, which provides for the punishment by fine of not more than $500 and imprisonment for not more than 10 days, applies to offenses covered by section 5640, but not to the preceding one above quoted. The discretion here given is a sound, reasonable discretion, and its exercise in a case of this kind is reviewable. It therefore becomes unimportant to consider the question much argued, viz., whether or not the legislature may interfere with the inherent power of courts to punish for contempt; and, as the court had power to try summarily, the form of the complaint is not a material question. PER CURIAM. The article was a libel upon the presiding judge, but that alone did not form the basis of the information. The intention of the publication was to insult and intimidate the judge, degrade the court, de- Though the libel was, in a large part, stroy its power and influence, and thus to against the presiding judge, that fact did not bring it into contempt; to inflame the preju- disqualify him from trying the proceeding in dices of the people against it; to lead them contempt. It was not the libel against the to believe that the trial then being conducted judge which constituted the offense for which was a farce and an outrage, which had its the respondent was liable as for a contempt foundation in fraud and wrong on the part of court. The offense consisted in the tenof the judge and other officers of the court, dency of his acts to prevent a fair trial of the and, if communicated to the jury, to preju- cause then pending in the court. It is this dice their minds, and thus prevent a fair and offense which constitutes the contempt, and impartial trial. Besides, the tendency was, for which he could be punished summarily; when read by the judge, to produce irrita- and the fact that in committing this offense tion, and, to a greater or less extent, render he also libeled the judge, and may be proceedhim less capable of exercising a clear and im- ed against by indictment therefor, is no reapartial judgment. It therefore tended direct- son why he may not and should not be punly to obstruct the administration of justice in ished for the offense against the administrareference to the case on trial, and its publi- tion of justice. The statute clearly authorcation was a contempt of court. The fact izes, as did the common law, courts to punish that, before its publication, a professional summarily, as contempts, acts calculated to opinion was given that the publication would obstruct their business. They could not be not be a contempt, does not change the es- maintained without such power, nor could sential character of the defamatory article, litigants obtain a fair consideration of their nor relieve the respondent of responsibility causes in a court where the jury or the judge for its origin and dissemination. Neither should be subject, during the trial, to influwas he justified in resorting to such means ences in respect to the case upon trial, calcuto right any real or imaginary wrong to him-lated to impair their capacity to act imparself in respect to the finding of the indict-tially between the parties. Nor is there seriment. A plea in abatement would have ous danger to the citizen in its exercise. searched the record, and caused the indict-Power must be lodged somewhere; and that ment to be set aside if found by an illegal it is possible to abuse it is no argument body, or procured by improper means. The against its proper exercise. But we think publication came within section 5639, Rev. the danger more imaginary than real. The St., which reads: "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." It is true that the article was not written, nor was it circulated, by the respondent in the presence of the court. Indeed, it was written in the city judgments of all inferior courts are subject to review. We have an untrammeled press, which, in legitimate ways, may properly exert a powerful influence upon public opinion. All judges are liable to impeachment for any misdemeanor in office. Our entire judiciary is elective, and all courts are thus easily within the reach of the people. These checks can, we think, be relied upon to prove an ad- | equate protection to the citizen against any arbitrary or unreasonable use of the discretion thus given to the courts. whole record that the punishment is severe, and the court cannot say that the incompetent matter did not affect the degree of punishment inflicted, we feel compelled to reverse the judgment, and remand the cause for further proceedings. Judgment accordingly. (149 Mass. 567) In considering and disposing of the case the court took judicial notice, without knowledge on the part of the respondent that it would be done, of many matters, among them the following: "That said respondent S. TILDEN v. GREENWOOD. MAUD G. TILleft the city of Columbus for his home in Cincinnati, Ohio, on or about the 29th day of February, 1888, under his promise to counsel for the state in the said trial then pending to return as a witness upon a telegram at any time one might be sent him; that he received such telegraphic notice, and answered it on the 5th day of March, 1888, that DEN v. SAME. S. TILDEN, ADM'R, v. SAME, (two cases.) MILLICENT G. TILDEN v. SAME. J. G. TILDEN v. SAME. F. F. TILDEN v. SAME. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 3, 1889.) EQUITABLE MORTGAGE LEASE-LIABILITY OF MORT GAGEE. A husband and wife conveyed certain real estate to defendant by a deed absolute in form, but in fact as security for money loaned under a parol agreement for a reconveyance on payment of the debt. The grantors remained in possession and control of the property. The husband leased the premises, but not in the name of defendant, and received the rents, and there was no evidence that he acted as defendant's agent in so doing. Held, that defendant was not liable for any damages suffered through the misrepresentations of the husband, on leasing the premises, as to their condition. Report from superior court, Suffolk county; J. W. HAMMOND, Judge. tions could not be maintained, and ordered C. G. Fall, for plaintiffs. he would attend as such witness on the following day; that instead of so attending he purposely went beyond the limits of the state of Ohio, to evade the service of process of any kind from this court upon him, and so remained until the end of the trial aforesaid: that said respondent attended said trial, and drew his pay as a witness for said defendant, from said 24th day of January, 1888, until the 1st day of March, 1888, and then absented himself without leave, and in violation of the order of the court, until said trial ended, and has since, to-wit, on the 7th day of April, 1888, been tried and adjudged by this court These were actions of tort to recover damin contempt, and fined for such absence, and ages for personal suffering caused by defecthas paid such fine and costs." It was com-ive drainage. The judge ruled that the acpetent for the court to take judicial notice of pertinent facts connected with the transaction which came within the cognizance of his own senses. But when the court assumed to take judicial notice of the facts which formed the ground of a previous proceeding for contempt against respondent, and of his being adjudged guilty, we think the court erred. If the facts were competent to be C. ALLEN, J. The ruling was a general taken into consideration,-which is, at least, one, that on all the evidence neither action very questionable, they were the subject of could be maintained. If, therefore, it is evidence, and could not be judicially noticed. found that in any essential particular the Proof of a previous like offense is not com- case of the several plaintiffs fails, judgment petent evidence save in a small class of cases, must be entered on the verdict for the dewhere guilty knowledge is a necessary ele- fendant. The actions were originally brought ment to be shown by the state; and such against Frederick P. Greenwood, Charles proof was not necessary in this case. Be- Greenwood, and Adeline Green wood; but yond this, the proceeding there noticed could for some reason not stated, at the close of have been heard before any other judge of the evidence, the plaintiff in each case disthe court, and, had it been, the impropriety continued as to all the defendants except of taking judicial notice of what was proven, Frederick P. Green wood. The alleged misand of the result, would be apparent to every representations upon which the several acone; and it is none the less so from the fact tions rest were made by Charles Green wood that the proceeding may have been heard by alone, and the right to recover against Fredthe judge who tried the case in review. The erick must depend upon the production of consideration of this incompetent matter was evidence sufficient to show that he was bound calculated to have a potent influence in deter- by misrepresentations of Charles. The evimining the sentence imposed. In a case dence as to the interest of Frederick P. Greenwhere the penalty is limited by statute, and wood in the house, and as to the agency of the sentence is the lowest allowed by law, Charles, and his authority to act for Fredand where, upon the whole record, the pun- erick, is stated in full in the report. There ishment seems justified, a reviewing court was no controversy as to the facts. At the might not feel it a duty to disturb the judg-time when the house was let to Tilden, the ment for an error of the character referred to. record title stood in Frederick. He held his But in a case where the penalty is discretion- title under a deed given to him by Adeline ary, and it appears, as in this case, upon the Greenwood in November, 1881, and a deed ་ In from Charles, given in June, 1882, in order | right. There is no privity between him and to convey his possible interest as tenant by the lessee, and no right in him to demand the the curtesy, the agreement being that the rent reserved by the lease. Manufactory property was conveyed to Frederick in order Corp. v. Melven, 15 Mass. 268; Bank v. Reed, to secure him for loans, and upon payment 8 Pick. 459, 462; Mayo v. Fletcher, 14 Pick. of the same he was to reconvey the proper- 525, 531; Teal v. Walker, ubi supra. ty. The three Greenwoods all testified to order to give him such a right, there must at this agreement in substantially the same least be an entry by him, and notice to the terms. There was no evidence to contradict tenants to pay rent to him, or some act equivtheir testimony, and it is obvious that it alent thereto. Stone v. Patterson, 19 Pick. was accepted at the trial as correct. No sug-476; Welch v. Adams, 1 Metc. 494; Morse v. gestion to the contrary has been made in the Goddard, 13 Metc. 177. argument. The agreement for the reconvey- In the present case, upon the testimony as ance apparently was oral. The amount of given, the mortgagors, Adeline and Charles the loans by Frederick and the terms of pay- Green wood, one or both, were entitled to the ment are not mentioned. There was noth-rents and profits of the mortgaged premises. ing to show that, at the time of the alleged They were, so far as appears, allowed to remisrepresentations by Charles, upon which main in possession, and to enjoy the income the several actions were founded, the loans of the property. Their promise to Frederick, of Frederick were overdue, or that he was so far as we can infer, was to pay interest, ever in possession of the premises for fore- and not rent. No action by Frederick could closure or otherwise, or ever took or claimed have been maintained against them for the the rents and profits thereof. It did not ap-rents received by them. In letting the house pear that the contract of letting the premises to Tilden, Charles Green wood acted for Adeto Tilden was made in Frederick's name. line or for himself, and not for Frederick. There was no evidence of any express au- There was nothing in the relations of the thority from Frederick to Charles under parties as disclosed which gave to Charles an which Charles was to act as the agent of implied power to act as agent of Frederick Frederick. The only testimony bearing up-in making the lease. All that the plaintiffs on this point is contained in the following have shown is that Frederick allowed Adestatement in the report: "In answer to in-line and Charles to remain in possession, and terrogatories, Frederick also said that Charles Greenwood was away from home continuously, in California or elsewhere, from July 12, 1886, to the last part of October in the same year, and during that period Sabine and Durkee had the management and care of said property and collections of the rents therefrom, under an arrangement made with Charles Greenwood, and assented to by him. He further said that Charles Greenwood, during the time he [Frederick] held the record title, prior to said July 12, 1886, had the exclusive care and management of said property, or that Frederick was responsible for erty." It thus appears that, at the time of the letting of the house to Tilden, Frederick was to be regarded in equity as mortgagee of the premises. The agreement to reconvey might be shown by parol. Campbell v. Dearborn, 109 Mass. 130; McDonough v. Squire, 111 Mass. 217; Hassam v. Barrett, 115 Mass. 256; Davis v. Ney, 125 Mass. 590; Cullen v. Carey, 146 Mass. 50, 15 N. E. Rep. 131. The defendant held the record title merely as security for his loans, and as between the parties their relation was the same as if the deed had been a mortgage. He must be considered merely as a mortgagee not in possession of the mortgaged premises, and the same rules are applicable as if there had been a mortgage in the ordinary form. Teal v. Walker, 111 U. S. 242, 4 Sup. Ct. Rep. 420. No rule of law is plainer than that a mortgagor of real estate has a right to the rents and profits while he is allowed to remain in possession, (Wilder v. Houghton, 1 Pick. 87;) and when a lease is made by a mortgagor. after the mortgage, it does not bind the mortgagee, nor in any manner affect his assented to their doing whatever they pleased in respect to the care and management of the property, and the collection of the rents. The security for his loans may have been much more than sufficient, or, if not, he may have been content to allow Adeline and Charles, who are stated by the plaintiffs' counsel to have been his parents, to get what they could out of the property. At any rate nothing is disclosed in the testimony which would warrant a jury in finding that Charles was acting as Frederick's agent in letting the prop any misrepresentations which Charles may have made as to its condition. This point was not discussed in the argument of the case, but it is presented by the careful report of the testimony by the justice who presided at the trial, and, as it is decisive of the several cases, it is not necessary to consider other grounds of defense. Judgments on the verdicts. (149 Mass. 578) COLLAMORE v. GILLIS. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 4, 1889.) FIXTURES-WHAT CONSTITUTE. A baker's oven, erected by a tenant, which is so attached to the building that it cannot be severed without destroying its character, reducing it to a mere mass of crude materials, and doing substantial injury to the building, is a permanent attachment to the realty, and is not removable as a trade fixture. Report from superior court, Suffolk county; JOHN LATHROP, Judge. Tort by Lucinda A. Collamore against Alexander H. Gillis, for waste in removing a baker's oven, erected by a tenant on plain-1ance with the cases which have heretofore tiff's premises, and for damages to the premises caused by such removal. The trial court found that the oven was a trade fixture, and ruled that plaintiff could not recover, but reported that if, as matter of law, the oven was not a trade fixture, judgmen' should be for plaintiff for $100. By agreement the case was reported to the supreme judicial court upon the evidence. arisen in this commonwealth. This result is also strongly supported by the decision in Whitehead v. Bennett, 27 Law J. Ch. 474. The authority of this case, it is said in Amos & F. Fixt. 63, has never been impugned in England; and it was cited with approval and commendation by Lord Chancellor SELBORNE in Wake v. Hall, L. R. 7 Q. B. Div. 295, 301. See, also, Sunderland v. Newton, S. J. Elder and F. A. P. Fiske, for plain-3 Sim. 450; Jenkins v. Gething, 2 Johns. & tiff. Ranney & Clark, for defendant. H. 520; Ombony v. Jones, 19 N. Y. 234; Ford v. Cobb, 20 N. Y. 344. The result, in the opinion of a majority of the court, is that, according to the terms of the report, there must be judgment for the plaintiff for $100. Judgment for the plaintiff. (149 Mass. 570) GOULD et al. v. STEIN et al. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 4, 1889.) SALE-IMPLIED WARRANTY. 1. On a sale of goods described as of a specified quality, which is well known in the market as disthat the goods shall be of that grade, though the tinct from an inferior grade, a warranty is implied are sold "as per sample, " and such warranty is broken if the goods are not of the specified quality, though they may be equal to the samples shown. C. ALLEN, J. In determining whether an addition made by a tenant to a leased building is removable or not by him during his terin, the chief element to be considered is the mode of its annexation, and whether it can be removed without substantial injury to the building or to itself. The intention with which it was put there, though often an element to be considered, is of secondary importance. Wall v. Hinds, 4 Gray, 270; Whiting v. Brastow, 4 Pick. 310; Hanrahan v. O'Reilly, 102 Mass. 201, 203; Weston v. Weston, Id. 514, 519; Amos & F. Fixt. (3 Ed.) 765. It is true that machines or struct-contract of sale further specifies that the goods ures which cannot be severed without taking them in pieces may nevertheless often be removed. Antoni v. Belknap, 102 Mass. 193. In Penton v. Robart, 2 East, 88, which is 2. The fact that the purchaser made an actual sometimes cited as supporting a broader dor-personal examination of the goods before accepttrine, all that was removed by the tenant Ing them does not avoid the warranty. was a superstructure of wood, which had Exceptions from superior court, Suffolk been brought from another place and put up-county; ROBERT C. PITMAN, Judge. on a brick foundation let into the ground. He pulled down the wooden superstructure, and carried away the materials, but did not undertake to remove the brick foundation, which perhaps was not placed there by him. The case of Van Ness v. Pacard, 2 Pet. 137, goes further; but the more recent case of Kutter v. Smith, 2 Wall. 491, 497, appears to recognize a narrower rule, though without any extended discussion of the question. Hill v. Sewald, 53 Pa. St. 271, follows Van Ness v. Pacard, and White's Appeal, 10 Pa. St. 252, is similar. We are not prepared to extend the right of removal so far as to include a thing which cannot be severed from the realty without being destroyed, or reduced to a mere mass of crude materials. Action by Henry A. Gould and others against Abe Stein and others for breach of warranty on the sale of certain rubber. Judgment for plaintiffs. Defendants except. J. B. Warner and H. E. Warner, for plaintiffs. J. H. Dougherty and G. A. King, for defendants. C. ALLEN, J. The determination of this case depends upon the construction to be given to the bought and sold notes, which were similar in their terms. It does not admit of doubt that these notes were intended to express the terms of the sale. They were carefully prepared and were read to the parties line by line, as they were written. Of course all the existing circumstances may be In the case before us, the oven was not looked at, but the contract of the parties is like a machine or a structure, the parts of to be found in what was thus written, when which are fitted to each other, and can be read in the light of those circumstances. taken apart and put together again at pleas- The goods respecting which the controversy ure in some other place. It had, so to speak, has arisen were a certain lot of rubber which no removable identity, but, when taken down, the defendants had on hand, and which could it necessarily lost its character as an oven, be identified. The transaction was a present and, with the exception of the iron lining and sale, and not an agreement to deliver rubber door, became mere bricks and mortar. When in the future. When in the future. The defendants now contend built, it was in the nature of a fixed and per- that the contract was executory, and that, if manent structure, which was so united with there was any warranty, there was none which the building that the two became inseparable survived the acceptance of the goods by the without the destruction of the one and a sub- plaintiffs; but the argument that it was not an stantial injury to the other. Under such executed present sale finds no support in the circumstances, we think the better reason is bill of exceptions, and no such point was taken in favor of holding that the oven was not re- at the trial; and there is no occasion to considmovable, and this view is more in accord-er the further question whether, in case of an executory agreement to sell, a warranty will in Hogins v. Plympton, 11 Pick. 97; Winsor survive the acceptance of the goods. The v. Lombard, 18 Pick. 57, 60; Forcheimer v. bought note, which the plaintiffs put in evidence, was of "148 bales Ceara scrap rubber, as per samples, viz., 46 bales of first quality marked A;' 102 bales of second quality." The controversy relates only to the 102 bales. It appeared that there was no exact standard by which the grade of rubber could be fixed, but that it was a matter of judgment. The court also found that Ceara rubber of second quality is well known in the market as distinct from a third or inferior grade; and there was evidence which well warranted this finding. The parties in their contract recognized the existence of different grades or qualities, though all of the rubber properly classified as of first quality or of second quality might not be of an exactly uniform standard or grade. Stewart, 65 Iowa, 593, 22 N. W. Rep. 886; Mader v. Jones, 1 N. S. Law R. 82. in Gardner v. Lane, 9 Allen, 492, 12 Allen, 39, it appeared that the statutes provided for the preparation, division into different qualities, packing, inspecting, and branding of mackerel, and it was held that if a certain number of barrels of No. 1 mackerel were sold, and by mistake barrels of No. 3 mackerel were delivered, no title passed to the purchaser, and that the barrels of No. 3 mackerel thus delivered by mistake might be attached as property of the vendor, and that each different quality, after being thus prepared for market, was to be regarded as a different kind of merchandise, so that no title passed to the vendee; there being no assent on the part of the vendee to take the No. 3 mackerel in place of those which he agreed to buy. The plaintiffs at the trial claimed damages merely on the ground that the 102 bales Now, if the words "as per samples" had were not of second quality, and made no not been in the bought note, it would be quite claim of inferiority to the samples shown, as plain that the present case would fall within a distinct ground, but waived all claim the ordinary rules above given. But the infounded on the exhibition of samples, and sertion of those words raises the inquiry the court found damages for the plaintiffs whether they limit the implied warranty of solely on the ground that the defendants the vendor, so that if the rubber sold was failed to deliver rubber of the second quality; equal in quality to the sample he would be ruling that the broker's note contained an ab- exonerated from liability, though it was not solute warranty of second quality rubber. If entitled to be classed as of the second quality. this ruling was right, it disposes of the defend- If no other meaning could be given to the ants' second and third requests for instruc- words "as per samples" except that they tions. The general rule is familiar and admit-alone were to be considered as showing the ted that a sale of goods by a particular descrip- quality of rubber to be delivered, the argution imports a warranty that the goods are ment in favor of the defendants' view would of that description. Henshaw v. Robins, 9 be irresistible. So if there was a plain and Metc. 83; Harrington v. Smith, 138 Mass. necessary inconsistency between the two de92; White v. Miller, 71 N. Y. 118; Osgood scriptions of the rubber, it might perhaps be v. Lewis, 2 Har. & G. 495; Randall v. New-successfully contended that the vendor's obson, L. R. 2 Q. B. Div. 102; Jones v. Just, ligation was only to deliver rubber which L. R. 3 Q. B. 197; Josling v. Kingsford, 13 would conform to the inferior quality deC. B. (N. S.) 447; Bowes v. Shand, L. R. 2 scribed; that is to say, that in case of such App. Cas. 455. And where goods are de-inconsistency, the words "as per samples" scribed on a sale as of a certain quality, which is well known in the market as indicating goods of a distinct, though not absolutely uniform, grade or standard, the description imports a warranty that the goods are of that grade or standard. In such cases, the words denoting the grade or quality of the goods are not to be treated as merely words of general commendation, but they are held to be words having a specific commercial signification. Thus, in Hastings v. Lovering, 2 Pick. 214, the words, in a salenote, "Sold 2,000 gallons prime quality winter oil," were held to amount to a warranty that the article sold agreed with the description; and in Henshaw v. Robins, 9 Metc. 87, it was said that the doctrine laid down in that case has ever since been considered as the settled law in this commonwealth. So in Chisholm v. Proudfoot, 15 U. C. Q. B. 203, it was held that where a manufacturer of flour marked it as of a particular quality, viz., "Trafalgar Mills, Extra Superfine," that amounted to a warranty of its being of such a quality. A similar doctrine may be found should prevail, and the words "of second quality" be rejected. If it were to be held that the vendor's obligation was fulfilled by delivering rubber of a quality equal to the samples, though it was not of the second quality, then the words "of second quality" would mean nothing, or they would be overborne by the words "as per samples." But if it is found that the bought note admits of a reasonable construction by which a proper significance can be given both to the words "as per samples" and also to the words "of second quality," there will be no occasion to disregard either. Cases are to be found in the books where such a construction has been given to contracts of sale. Thus, in Whitney v. Boardman, 118 Mass. 242, a sale of Cawnpore buffalo hides, with all faults, was held to mean with such faults and defects as the article sold might have, retaining still its character and identity as the article described; and the court cited with approval the case of Shepherd v. Kain, 5 Barn. & Ald. 240, where there was a sale of a copper-fastened vessel, to be taken "with all faults, and |