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had come to his knowledge, which he be- 1 of Cincinnati, though dated at Columbus. lieved to be true; that the article was read, But the publication was in the court-room, before its publication, to a member of the as well as elsewhere. It was intended to bar of Hamilton county of high standing, have effect, and did have effect, in the courtwho gave the opinion that the publication of house at Columbus; and the writer was just it would not be a contempt of court, which as much responsible for that effect as though was concurred in by another lawyer of expe- he had, in the court-room itself, and while rience; and that the article was written un- the trial was progressing, circulated and read der the influence of feelings engendered by aloud the article, or uttered the libelous words his personal knowledge of the fact that a verbally. The acts were thus done, if not in grievous and irreparable wrong was being the very presence of the court, at least so done him in connection with the prosecution near thereto as to obstruct its business. For of the case referred to. A trial was had, at violation of the foregoing section of the statwhich evidence was introduced by both par- ute the punishment is within the discretion ties. The court also took judicial notice of of the court. Section 5645, which provides many matters, some of which are quoted in for the punishment by fine of not more than the opinion. The respondent was found $500 and imprisonment for not more than 10 guilty, and sentenced to pay a fine of $200 days, applies to offenses covered by section and costs, be imprisoned 90 days in the coun-5640, but not to the preceding one above ty jail, and stand committed until the fine quoted. The discretion here given is a sound, and costs should be paid.

reasonable discretion, and its exercise in a R. A. Harrison, E. L. Taylor, and T. E. case of this kind is reviewable. It therefore Powell, for plaintiff in error. J. T. Holmes becomes unimportant to consider the quesand J. H. Collins, for the state.

tion much argued, viz., whether or not the

legislature may interfere with the inherent PER CURIAM. The article was a libel upon power of courts to punish for contempt; and, the presiding judge, but that alone did not as the court had power to try summarily, the form the basis of the information. The in- form of the complaint is not a material questention of the publication was to insult and tion. 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 judgments of all inferior courts are subject chambers, may punish summarily a person to review. We have an untrammeled press, guilty of misbehavior in the presence of or which, in legitimate ways, may properly exso near the court or judge as to obstruct the ert a powerful influence upon public opinion. administration of justice.” It is true that All judges are liable to impeachment for any the article was not written, nor was it circu- misdemeanor in office. Our entire judiciary lated, by the respondent in the presence of is elective, and all courts are thus easily the court. Indeed, it was written in the city within the reach of the people. These checks

DEN

GAGEE.

can, we think, be relied upon to prove an ad- / whole record that the punishment is severe, equate protection to the citizen against any and the court cannot say that the incompearbitrary or unreasonable use of the discre- tent matter did not affect the degree of puntion thus given to the courts.

ishment inflicted, we feel compelled to reverse In considering and disposing of the case the judgment, and remand the cause for furthe court took judicial notice, without knowl-ther proceedings. Judgment accordingly. edge on the part of the respondent that it would be done, of many matters, among

(149 Mass. 567) them the following: “That said respondents. TILDEN 0. GREENWOOD. MAUD G. TILleft the city of Columbus for his home in

V. SAME. S. TILDEN, ADMÄR, v. Cincinnati, Ohio, on or about the 29th day

SAME, (two cases.) MILLICENT G. TILof February, 1888, under his promise to coun

DEN V. SAME. J. G. TILDEN V. SAME. sel for the state in the said trial then pend

F.F. TILDEN V. SAME. ing to return as a witness upon a telegram at any time one might be sent him; that he (Supreme Judicial Court of Massachusetts. Suf

folk. Sept. 3, 1889.) received such telegraphic notice, and answered it on the 5th day of March, 1888, that

EQUITABLE MORTGAGE LEASE-LIABILITY OF MORThe would attend as such witness on the fol

A husband and wife conveyed certain real eslowing day; that instead of so attending he tate to defendant by a deed absolute in form, but purposely went beyond the limits of the state in fact as security for money loaned under a parol of Ohio, to evade the service of process of agreement for a reconveyance on payment of the any kind from this court upon him, and so control of the property. The husband leased the remained until the end of the trial aforesaid; premises, but not in the name of defendant, and that said respondent attended said trial, and received the rents, and there was no evidence that

he acted as defendant's agent in so doing. Held, drew his pay as a witness for said defendant, that defendant was not liable for any damages suffrom said 24th day of January, 1888, until the fered through the misrepresentations of the hus1st day of March, 1888, and then absented band, on leasing the premises, as to their condihimself without leave, and in violation of the

tion, order of the court, until said trial ended, and Report from superior court, Suffolk counhạs since, to-wit, on the 7th day of April, ty; J. W. HAMMOND, Judge. 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 tions could not be maintained, and ordered pertinent facts connected with the transac-verdicts for the defendant, which were retion which came within the cognizance of his turned, and the cases were reported to the own senses. But when the court assumed supreme judicial court. The facts fully apto take judicial notice of the facts which pear in the opinion. formed the ground of a previous proceeding C. G. Fall, for plaintiffs. Richardson & for contempt against respondent, and of his Hale, for defendant. 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 Greenwood; 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. Greenwood. 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 Greenwood 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 evi. mining 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

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. In 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- Greenwood, 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 preinises 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 Greenwood 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 assented to their doing whatever they pleased Greenwood was away from home continuous in respect to the care and management of the ly, in California or elsewhere, from July 12, property, and the collection of the rents. The 1886, to the last part of October in the same security for his loans may have been much year, and during that period Sabine and more than sufficient, or, if not, he may have Durkee had the management and care of said been content to allow Adeline and Charles, property and collections of the rents there who are stated by the plaintiffs' counsel to from, under an arrangement made with have been his parents, to get what they could Charles Greenwood, and assented to by him. out of the property. At any rate nothing is He further said that Charles Greenwood, disclosed in the testimony which would warduring the time he [Frederick] held the rec- rant a jury in finding that Charles was actord title, prior to said July 12, 1886, had the ing as Frederick's agent in letting the propexclusive care and management of said prop- erty, or that Frederick was responsible for erty." It this appears that, at the time of any misrepresentations which Charles may the letting of the house to Tilden, Frederick have made as to its condition. This point was to be regarded in equity as mortgagee of was not discussed in the argument of the the premises. The agreement to reconvey case, but it is presented by the careful report might be shown by parol. Campbell v. Dear- of the testimony by the justice who presided born, 109 Mass. 130; McDonough v. Squire, at the trial, and, as it is decisive of the sev111 Mass. 217; Hassam v. Barrett, 115 Mass. eral cases, it is not necessary to consider oth256; Davis v. Ney, 125 Mass. 590; Cullen v. er grounds of defense. Judgments on the Carey, 146 Mass. 50, 15 N. E. Rep. 131. The verdicts. defendant held the record title merely as se

(149 Mass. 578) curity for his loans, and as between the parties their relation was the same as if the

COLLAMORE 0. GILLIS. deed had been a mortgage. He must be con- (Supreme Judicial Court of Massachusetts. Suf. sidered merely as a mortgagee not in posses

folk. Sept. 4, 1889.) sion of the mortgaged premises, and the same

FIXTURES-WHAT CONSTITUTE. rules are applicable as if there had been a A baker's oven, erected by a tenant, which mortgage in the ordinary form. Teal v. ered without destroying its character, reducing it

is so attached to the building that it cannot be sevWalker, 111 U. S. 242, 4 Sup. Ct. Rep. 420. to a mere mass of crude materials, and doing subNo rule of law is plainer than that a mort- stantial injury to the building, is a permanent atgagor of real estate has a right to the rents tachment to the realty, and is not removable as a

trade fixture. and profits while he is allowed to remain in possession, (Wilder v. Houghton, 1 Pick. | Report from superior court, Suffolk coun87;) and when a lease is made by a mortgag- ty; JOHN LATHROP, Judge. or. after the mortgage, it does not bind the Tort by Lucinda A. Collamore against Almortgagee, nor in any manner affect his 'exander H. Gillis, for waste in removing a

baker's oven, erected by a tenant on plain-lance with the cases which have heretofore tiff's premises, and for damages to the prem-arisen in this commonwealth. This result is ises caused by such removal. The trial court also strongly supported by the decision in found that the oven was a trade fixture, and Whitehead v. Bennett, 27 Law J. Ch. 474. ruled that plaintiff could not recover, but re- The authority of this case, it is said in Amos ported that if, as matter of law, the oven was & F. Fixt. 63, has never been impugned in not a trade tixture, judgmen: should be for England; and it was cited with approval and plaintiff for $100. By agreement the case commendation by Lord Chancellor SELwas reported to the supreme judicial court BORNE in Wake v. Hall, L. R. 7 Q. B. Div. upon the evidence.

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 C. ALLEN, J. In determining whether an the opinion of a majority of the court, is that, addition made by a tenant to a leased build- according to the terms of the report, there ing is removible or not by him during his must be judgment for the plaintiff for $100. terin, the chief element to be considered is Judgment for the plaintiff. the mode of its annexation, and whether it can be removed without substantial injury to

(149 Mass. 570) the building or to itself. The intention with

GOULD et al. v. STEIN et al. which it was put there, though often an ele (Supreme Judicial Court of Massachusetts. ment to be considered, is of secondary im

Suffolk. Sept. 4, 1889.) portance. Wall v. Hinds, 4 Gray, 270;

SALE-IMPLIED WARRANTY. Whiting v. Brastow, 4 Pick. 310; Hanrahan 1. On a sale of goods described as of a specified v. O'Reilly, 102 Mass. 201, 203; Weston v. quality, which is well known in the market as disWeston, Iů. 514, 519; Amos & F. Fixt. (311 that the goods shall be of that grade, though the

tinct from an inferior grade, a warranty is implied Ed.) 765. It is true that machines or struct-contract of sale further specifies that the goods ures which cannot be severed without taking are sold as per sample,” and such warranty is them in pieces may nevertheless often be re- broken if the goods are not of the specified qualmoved. Antoni v. Belknap, 102 Yass. 193. ity, though they may be equal to the samples 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 bronight from another place and put up-county; ROBERT C. PITMAN, Judge. on a brick foundation let into the ground. Action by Henry A. Gould and others He pulled down the wooden superstructure, against Abe Stein and others for breach of and carried away the materials, but did not warranty on the sale of certain rubber. undertake to remove the brick foundation, Judgment for plaintiffs. Defendants except. which perhaps was not placed there by him. J. B. Warner and H. E. Warner, for The case of Van Ness v. Pacard, 2 Pet. 137, plaintiffs. J.H. Dougherty and G. A. King, goes further; but the more recent case of for defendants. Kutter v. Smith, 2 Wall. 491, 497, appears to recognize a narrower rule, though without C. ALLEN, J. The determination of this any extended discussion of the question. Hill case depends upon the construction to be v. Sewald, 53 Pa. St. 271, follows Van Ness v. given to the bought and sold notes, which Pacard, and White's Appeal, 10 Pa. St. 252, is were similar in their terms. It does not adsimilar. We are not prepared to extend the mit of doubt that these notes were intended right of removal so far as to include a thing to express the terms of the sale. They were which cannot be severed from the realty with carefully prepared and were read to the parout being destroyed, or reduced to a mere ties line by line, as they were written. Of miss of crude materials.

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 hail, 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. 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-Ier 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 evi- Stewart, 65 Iowa, 593, 22 N. W. Rep. 886; dence, was of "148 bales Ceara scrap rub- Mader v. Jones, 1 N. S. Law R. 82. in ber, as per samples, viz., 46 bales of first Gardner v. Lane, 9 Allen, 492, 12 Allen, 39, quality marked * A;' 102 bales of second it appeared that the statutes provided for the quality.” The controversy relates only to preparation, division into different qualities, the 102 bales. It appeared that there was no packing, inspecting, and branding of mackexact standard by which the grade of rubber erel, and it was held that if a certain number could be fixed, but that it was a matter of of barrels of No. 1 mackerel were sold, and by judgment. The court also found that Ceara mistake barrels of No. 3 mackerel were delivrubber of second quality is well known in ered, no title passed to the purchaser, and the market as distinct from a third or inferior that the barrels of No. 3 mackerel thus degrade; and there was evidence which well livered by mistake might be attachel as propwarranted this finding. The parties in their erty of the vendor, and that each different contract recognized the existence of different quality, after being thus prepared for margrades or qualities, though all of the rubber ket, was to be regarded as a different kind properly classified as of first quality or of sec- of merchandise, so that no title passed to the ond quality might not be of an exactly uni- vendee; there being no assent on the part of form standard or grade.

the vendee to take the No. 3 mackerel in The plaintiffs at the trial claimed damages place of those which he agreed to buy. merely on the ground that the 102 bales Now, if the words “as per samples” bad 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; eqnal 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, should prevail, and the words “of second which is well known in the market as indi- quality” be rejected. If it were to be held cating goods of a distinct, though not abso- that the vendor's obligation was fulfilled by lutely uniform, grade or standard, the de- delivering rubber of a quality equal to the scription imports a warranty that the goods samples, though it was not of the second are of that grade or standard. In such cases, quality, then the words "of second quality" the words denoting the grade or quality of would mean nothing, or they would be overthe goods are not to be treated as merely borne by the words “as per samples.” But words of general commendation, but they if it is found that the bought note admits of are held to be words having a specific com- a reasonable construction by which a proper mercial signification. Thus, in Hastings v. significance can be given both to the words Lovering, 2 Pick. 214, the words, in a sale- “as per samples” and also to the words “of note, "Sold 2,000 gallons prime quality win-second quality,” there will be no occasion to ter oil,” were held to amount to a warranty disregard either. Cases are to be found in that the article sold agreed with the descrip- the books where such a construction has tion; and in Henshaw v. Robins, 9 Metc. 87, been given to contracts of sale. Thus, in it was said that the doctrine laid down in that Whitney v. Boardman, 118 Mass. 242, a sale case has ever since been considered as the of Cawnpore buffalo hides, with all faults, settled law in this commonwealth. So in was held to mean with such faults and deChisholm v. Proudfoot, 15 U. C. Q. B. 203, fects as the article sold might have, retaining it was held that where a manufacturer of still its character and identity as the article flour marked it as of a particular quality, described; and the court cited with approval viz., “Trafalgar Mills, Extra Superfine,” that the case of Shepherd v. Kain, 5 Barn. & Al. amounted to a warranty of its being of such 240, where there was a sale of a copper-fasta quality. A similar doctrine may be found lened vessel, to be taken “with all faults, and

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