material whether the return of the deed served the purpose of color so far as it affects the rights of the defendant. The error of the judge, therefore, did him no harm.

The judgment is affirmed.

EXECUTION SALES.-Judicial and execution sales are not scrutinized by the courts with a view to defeat them; on the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done consistently with legal rules, the object they were intended to accomplish: Smith v. Crosby, 86 Tex. 15; 40 Am. St. Rep. 818, and note.

DEEDS-COLOR OF TITLE.-A grantee of land has a claim and color of title where his deed on its face purports to convey the title. It is not necessary that his title, when traced back to its source, should prove to be an apparently legal and valid title: Nelson v. Davidson, 160 Ill. 254; 52 Am. St. Rep. 338, and note. See, also, the extended note to Tate v. Southard, 14 Am. Dec. 583.

DEEDS.--A deed to one who is dead at the time of the execution is a nullity: Hunter v. Watson, 12 Cal. 363; 73 Am. Dec. 543, and note.

IN RE ROBINSON.

[117 NORTH CAROLINA, 533.]

CONTEMPTS.-THE INHERENT POWER OF COURTS TO punish summarily for contempt any act committed in their presence, or so near their sittings as to disturb their proceedings, or that is calculated to disturb their business or impair their usefulness or bring them into disrespect or contempt cannot be taken away by legislation.

CONTEMPTS.-POWER OF LEGISLATURE TO REGULATE.-The common-law power of courts to punish, for contempt, acts not committed in their presence, but calculated and intended to impair their usefulness and bring them into disrespect, may be regulated by the legislature.

CONTEMPT-RIGHT TO TRIAL-PUBLICATION OF COURT PROCEEDINGS.-Under a statute providing that "no person can be punished as for contempt for publishing a true, full, and fair report of any trial, argument, decision or proceeding had in court," a person cited to show cause why he should not be punished for contempt in publishing a report of a case tried in court, who answers, stating that he believed his publication to be correct and fair, and that it was not made to bring the court into contempt or ridicule, is entitled to have the issue tried, either by the court or by a jury, if there is nothing on the face of the publication showing it to be grossly incorrect, or calculated to bring the court into contempt or disrespect.

CONTEMPT-INTENT-CONCLUSIVENESS OF ANSWER.— In a proceeding to punish a person for contempt for a publication made in a newspaper, the answer of the respondent, as to the intent with which the publication was made, is conclusive.

Proceeding to punish one Robinson for contempt of court based upon the following order:

"It is ordered by the court that the following notice shall be issued instanter and served on Frank E. Robinson, editor, etc.,

of the Asheville Daily Citizen, and is in words and figures as follows: "In the Citizen, an afternoon paper, published in the city of Asheville, under date July 24, 1895, appears an editorial entitled, "The Removal." In this paper appears the following: "The reasons that Judge Ewart gave for the removal of the cause was founded on the unintentional error corrected by the context, which the Citizen made in reporting the testimony of John Sumner, and the affidavits of men from various parts of the county, stating that, in their opinion, Sumner could not obtain an impartial trial in Buncombe. The error was corrected the next day; but if it had gone uncorrected, it could have misled no man who had sufficient intelligence to read and comprehend the report of the testimony; the mistake is too shallow and too flimsy to deserve the consideration Judge Ewart seems to have given it.

"If Judge Ewart be justified in removing the case, any case of importance can always be removed, for anyone of standing can always get friends to say that, in their opinion, the county wherein the crime is committed is not the proper place to try the accused.

"Judge Ewart knows very well that it is far beyond the power of the Lance family, or of any other family, or of an unintentional error in the Citizen, to so mold the public sentiment of Buncombe county as to make it impossible for one of her citizens to obtain justice in a trial for his life.

"The statute requires the court to be satisfied that justice cannot be done before a case can be removed. How can an intelligent citizen come to the conclusion that in this case this court was satisfied on this point? It is now Judge H. G. Ewart's work to satisfy the people of Buncombe that he has acted wisely in

the matter.

"The removal of the case to Henderson is unnecessary, expensive, and a reflection on the intelligence of Buncombe county." "It appearing to the court this publication is a grossly inaccurate report of the proceedings of this court had in this cause, to wit, the case of the state against Jesse Sumner, and was made with intent to misrepresent this court and to bring into contempt and ridicule, it is ordered that a rule issue against Frank E. Robinson, editor of the Citizen, to appear before this court on Saturday next at 9 a. m., and show cause why he should not be attached for a contempt of this court. This 25th of July, 1895." Robinson answered, denying the matter enumerated in the last paragraph of such order and without a trial of the issue thus raised, was found guilty and appealed.

Moore & Moore, Lock, Craig, and J. S. Adams, for the appellant.

W. W. Jones and J. M. Moody, for the appellee.

537 FURCHES, J. It is a delicate matter for a court to sit in judgment, when it is in any way connected with the matter under consideration. It is contrary to the spirit of our institutions, and should only be done when the public good and the public service demand it; then it should be done promptly, firm ly, and without personal consideration.

Our courts constitute one of the co-ordinate departments of our government, established by the constitution and the legislation thereunder. They are not only a part of the government, but are necessary to the enforcement of the law and the protection of the lives, the liberty, and the property of our citizens. This they cannot do without the power to protect themselves by enforcing order and respect for the court and obedience to its mandates. To this end it is clothed with inherent power to punish summarily for any act committed in its presence, or so near its sittings as to disturb the proceedings of the court, in violation of its rules of orderly conduct, or that is calculated to disturb the business of the court, or to impair its usefulness, or to bring it into disrespect and contempt: State v. Mott, 4 Jones, 449; Ex parte Schenck, 65 N. C. 353; Ex parte Moore, 63 N. C. 397; In re Deaton, 105 N. C. 59, and cases cited.

These powers, it is conceded, cannot be taken from the courts by legislation. But at common law there were many other acts, not committed in the presence of the court, which were considered as calculated and intended to impair 588 the usefulness of the courts and to bring them into disrespect, and which the courts treated as contempts and punished the offenders. And it is held that this class of contempt may be regulated and prescribed by legislation: Ex parte Schenck, 65 N. C. 353, and cases cited in the argument in that case.

The case we are now considering falls under this class, and whatever may have been the law before, the act of the 4th of April, 1871, governs this case: Ex parte Schenck, 65 N. C. 353. It is contended that respondent violated section 648, subsection 7, of the code, in publishing the article set out in the rule to show cause, and is on that account guilty of contempt. This section is as follows: "The publication of grossly incorrect reports of the proceedings in any court, about any trial or other matter pending before said court, made with intent to misrepresent or to bring into contempt the said court; but no person can

be punished as for contempt in publishing a true, full, and fair report of any trial, argument, decision, or proceeding had in court."

The only part of the article complained of that seems to undertake to give a report of the proceedings of the court, is as follows: "The reasons that Judge Ewart gave for the removal of the cause were founded on the unintentional error, corrected by the context, which the Citizen made in reporting the testimony of John Sumner, and the affidavits of men from various parts of the county, stating that, in their opinion, Sumner could not obtain an impartial trial in Buncombe." The respondent, in his answer to the rule, says this statement is not grossly incorrect, and that he believes it is a full and true report of the proceedings of the Sumner case.

There is nothing inherent in this statement that shows that it is grossly incorrect; the respondent says that, as he 539 is informed and believes, it is correct. The answer makes the issue as to whether it is correct or not, and, while we do not agree with the counsel for respondent that he was entitled to have it tried by a jury (if he had demanded a jury, which he did not), yet we are of the opinion that he was entitled to have this issue tried by the court, unless the court chose to submit it to a jury; because, if it was a correct statement of the facts, then, under the statute, it was no contempt to make the publication. It does not appear that the matter was tried in any way—the court simply holding that respondent's "answer was not responsive to the rule," and adjudged him guilty of contempt.

We do not see that that part of the publication purporting to give an account of the proceedings, of itself, is calculated to produce disrespect and contempt for the court; but, if it had been found to be grossly incorrect, pointed as it is, by the comments that followed, we do not say it would not amount to contempt under the statute.

But we must hold that, under the statute of 1871, the respondent cannot be punished for contempt for the language used in his comments upon the court, that we think were calculated and must have been intended to bring the court into ridicule and contempt only as they might point and furnish evidence of the intent with which the misrepresentations as to the trial were made, if it had been found they were grossly erroneous.

It is our duty to declare the law as we find it, and it is not within our province to say whether it is wise or not. There are two sides to it-on one side the protection of the citizen, on the other the usefulness and efficiency of the courts. The most

of our citizens and many of our newspaper men recognize the delicate position a judge occupies-that his position neither allows him to defend himself physically 540 or through the public press against false and slanderous charges, and these do not consider it manly to make such charges-and no judge ought to object to just and fair criticism by the press.

But respondent also puts his defense on another ground; he says under oath: "3. Affiant states that said publication was not made with intent to misrepresent this court, or to bring this court into contempt and ridicule."

It is not for the court to judge whether this was false or true; the law made him his own judge-his own trier-and as to how well he did this he will answer at another bar; we must take his verdict: Ex parte Biggs, 64 N. C. 202.

There is error in the judgment.

CONTEMPT-INHERENT POWER OF COURTS TO PUNISH FOR.-The power to punish for contempt is inherent in all courts of record, and is essential to the preservation of order in all judicial proceedings: State v. Judge, 45 La. Ann. 1250; 40 Am. St. Rep. 282, and note. This subject is fully discussed in the extended notes to Percival v. State, 50 Am. St. Rep. 573; Clark v. People, 12 Am. Dec. 178, and the note to State v. Doty, 90 Am. Dec. 674.

CONTEMPT-POWER OF THE LEGISLATURE TO REGULATE.-The great weight of authority is to the effect that though it may be competent for the legislature to regulate proceedings in cases where contempts are alleged to have been committed, it cannot thereby nor otherwise take from courts of general jurisdiction their inherent power to command the respect due them, and that, therefore, the authority to punish for contempt need not be founded on any statute, nor is it subject to statutory destruction: Extended note to Percival v. State, 50 Am. St. Rep. 573.

HANSLEY V. JAMESVILLE & WASHINGTON RAILROAD COMPANY.

[117 NORTH CAROLINA, 565.]

DAMAGES-EXEMPLARY-GROUND FOR.-The only true ground for allowing exemplary damages against a railroad company, in favor of a passenger, is personal injury to the latter caused by the negligence of the former, or, in the absence of such injury, then only for insult, indignity, contempt, or the like, from which the law imputes bad motive.

DAMAGES-EXEMPLARY-NEGLIGENCE OF RAILROAD COMPANY.-If a railroad company, without inflicting any personal injury, insult or indignity upon a passenger, negligently, and by reason of defective and inadequate means of conveyance, fails to carry him according to contract, his right of action is ex contractu and not in tort, and he can recover only compensatory damages and is not entitled to vindictive, punitive or exemplary damages.