however, can the estate be held liable. The estate cannot be held liable for a tort committed by an administrator or executor. Eustace v. Jahns, 38 Cal. 3. Nor can the estate be held liable in damages for the breach of a contract entered into by an executor. I doubt the power of the executrix to bind the estate by a contract for a future sale, even though the will authorized her to sell. This would not seem to answer the purpose in conferring the authority upon one whose only function is to pay debts and hold the property for final distribution. The power is given to facilitate administration, and not to enable the representative to carry on business. But even in the latter case, when the executor is authorized to carry on business, the creditor must look to the executor personally. The right to hold the estate is in the representative only. See Schouler, Ex'rs, §§ 256, 257. If the sale was complete, and the property belonged to the plaintiff, he could have brought suit against any one who wrongfully detained it, and could thus have recovered his property. Had the defendant been sued individually, he could have defended under his claim as executor. Had he failed, however, the judgment would have been against him, and not against the estate.

In the second count it is charged that between the 1st day of April, 1895, and the 1st day of June, 1895, while Mahulda Catherine Angle was executrix, "she, as such executrix, and the said estate of Rench Angle, became indebted to plaintiff in the sum of $1,000, on account of money received, paid, laid out, and expended for the benefit of said estate." This allegation shows no liability on the part of the estate to plaintiff. The executrix had no power, as such, to create a debt against the deceased. "Indeed, the rule is that executors and administrators cannot, by virtue of their general powers as such, make any contract which will bind the estate, and authorize a judgment de bonis decedentis. But on contracts made by them for necessary matters relating to the estate they are personally liable, and must see to it that they are reimbursed out of the assets." Schouler, Ex'rs, 256, and numerous authorities there cited. There are doubtless exceptions to this rule, such as funeral expenses, clerk's fees, etc., but neither an executor nor an administrator can borrow money on the credit of the estate. He cannot, except when expressly authorized by the will or statute, create an obligation which will give a right of action against the estate.

The findings do not follow either count in the complaint, but state a different cause of action. For the reasons above stated, however, it is plain that they do not state facts which would support a judgment against the estate. See, also, Austin v. Munro, 47 N. Y. 360. This case also holds that the

complaint cannot be amended so as to con stitute an action against the executor indi vidually. It would be an entire change of the party defendant, and a different suit. The judgment is reversed

We concur: MCFARLAND, J.; HEN SHAW, J.

(119 Cal. 413) MCCLATCHY. SUPERIOR COURT OF

SACRAMENTO COUNTY.1
(S. F. 580.)

(Supreme Court of California. Dec. 27, 1897.) CERTIORARI-WHEN LIES-REVIEW-Contempt WHAT CONSTITUTES JURISDICTION-DEFENSE - DUE PROCESS OF LAW.

1. Where one is accused of constructive contempt for falsely publishing a report in relation to a cause on trial, and the judge refuses to allow accused to make a defense in justification of the alleged contemptuous acts, such refusal goes to the jurisdiction of the court, and is hence reviewable on certiorari.

2. Publication of the truth as to legal proceed. ings is not contempt of court.

3. Since a judge on the bench has no greater right to cast aspersions on the character of another, not a participant in a cause on trial, than any other person, a criticism of the action of the judge, if made only in response to an unjust charge against one's veracity, and without intent to improperly influence the proceedings of court, is not contemptuous.

4. The evidence given in the court below, as well as the record, may be examined, on application for a writ of certiorari, to determine whether the court below exceeded its jurisdiction.

5. The editor of a newspaper charged with constructive contempt for publishing an article alleged to be "false, scandalous, and defamatory," and "intended to degrade the court and excite public prejudice and odium against it." and to be an "unlawful interference with the proceedings of the court," was denied the right to make the defense that the publication was true, was not made with wrong intent, and that the reference to the judge was in response to his charge against the editor, and not to inter fere with the administration of justice. The accused declined, on permission given by the court, to introduce evidence to show want of malice. Held, that the refusal to allow the defense to be made deprived the accused of his constitutional right to be heard in his own de fense, and of a right to the due process of law requisite to a valid conviction, and the order finding accused guilty should be annulled.

Harrison, Temple, and Henshaw, JJ., dissenting.

In banc. Appeal from superior court, city and county of San Francisco; A. P. Catlin. Judge.

P. Reddy, for petitioner. S. S. Holl, for respondent.

VAN FLEET, J. Certiorari to review an order of respondent adjudging petitioner guilty of contempt. While the cause of Talmadge against Talmadge was on trial in the superior court of Sacramento county an ar ticle appeared in the Sacramento Bee, a newspaper published in the city of Sacramento, purporting to be an account of certain testimony given by one of the witnesses. 1 Rehearing denied.

and when, at the opening of court next day, its attention was called to the article by one of the attorneys in the cause, the judge stated from the bench that he had no hesitation in saying that the statement referred to was a grossly false statement, a gross fabrication, and that there was not the slightest ground in the testimony of the witness upon which such a statement could be based. In the afternoon of that day the Bee published in its editorial columns the following article: "The Bee will not keep in its employ a reporter who garbles or who misstates, but when a newsgatherer does his duty and tells the truth it will not stand silently by while an aggregation of attorneys tries to make him out a liar, and while a prejudiced and vindictive czar upon the bench aids and abets them in such a purpose. The Bee reasserts that in all material details the statement of Talmadge, as given in the Bee of yesterday, was the statement that he made upon the stand at Monday afternoon session. The Bee will go further than that. It will declare that both the attorneys before the bar and the judge on the bench knew that the statement made in the Bee was an essentially correct epitome of the testimony given by Mr. Talmadge at the very moment when they unhesitatingly, shamelessly, and brazenly declared it to be a gross fabrication. There is no paper anywhere that has a higher regard for fair and impartial courts than has the Bee, but there is no paper anywhere that has a supremer contempt than has the Bee for a judge who will approve the unmitigated falsehood of an attorney, as Judge Catlin today approved the brazen misstatement of Judge J. B. Devine." Similar language was repeated in the columns of the newspaper on the two succeeding days. The petitioner herein is the editor and one of the proprietors of the Bee, and on June 2, 1896, upon an affidavit of Mr. C. T. Jones, setting forth these publications, and that the same was an interference with the proceedings of the court in the trial of the cause, and constituted a contempt of said court, a citation was issued directing him to show cause why he should not be punished for said contempt. In obedience to the citation the petitioner appeared in court, and filed an answer acknowledging that the article was published by his authority, and justifying its publication upon the ground, among others, that it was in fact a correct report of the proceedings at the trial, and that it was published in order to defend himself from the charge made by the judge of the court, and in his answer repeated the charges made in the article published. Upon the hearing of the charge the court found the facts in accordance with the affidavit of Mr. Jones, and that the publications were an unlawful interference with the proceedings of the court in the trial of the cause, and adjudged the petitioner guilty of the contempt alleged, and that he pay a fine of $500. The petitioner

seeks by this proceeding a judgment annulling this order of the superior court.

There is but one point which need be considered. It is contended, and we think correctly, that the order under review is void for the reason, clearly disclosed by the record, that the petitioner was denied his constitutional right to be heard in his defense. The charge against him was in making certain publications in his newspaper relating to the evidence in the case on trial, alleged in the affidavit upon which he was cited to be "false, scandalous, and defamatory," and which "were intended to degrade the said court, and excite public prejudice and odium against it, and were unlawful interferences with the proceedings of said court." The gravamen of this charge was the alleged false character of the publications, and the wrongful intent of petitioner in making them to bring the court into contempt, and thus interfere with the orderly administration of justice in the cause on trial. That this was the understanding and theory of the prosecution is shown by the course of proceeding in the court below. To prove the false character of the matter published by petitioner, the prosecution introduced the court reporter, who testified that the matter published, purporting to be a statement of the evidence as given in the action on trial at the time, did not accord with his notes of such evidence; and, to show that petitioner acted with malicious intent, it was proved by the reporter that before the second publication appeared he had furnished to petitioner what purported to be a correct transcript of his notes of that portion of said evidence to which the publication referred. This was substantially the case of the people, the publications being admitted. The substantive defense was that the publications were in fact true, and not made with any wrongful intent; that the personal references therein to the judge were merely in response to the aspersion of the latter cast upon petitioner in characterizing the statements in his newspaper as false and fabricated, when in fact they were not; and that such personal references were not made for the purpose of interfering with the administration of justice. That this was a complete defense, if sustained by evidence, there can, we think, be no doubt. The publication of the truth as to legal proceedings is not a contempt of court (In re Shortridge, 99 Cal. 526, 34 Pac. 227); and the criticism of the action of the judge, if made only in proper response to an unjust charge against petitioner's veracity, and without intent to improperly influence the proceedings of the court, would not be contemptuous. It is said that the language of the judge was not directed at petitioner, but to the reporter on his paper; but we do not think the language will justly bear this limitation. A judge on the bench no more than any other can cast aspersions upon the character of a person not a party or participant in a case on trial, without a right in the latter to defend himself. Petitioner might

not have been able to establish this defense, but he was not permitted to make the effort. When the case of the people rested this occurred: "Mr. Reddy: We want to call witnesses to show that the publication in the Bee was in point of fact true. The Judge: I will not hear testimony further than what has already appeared on that subject, as stated by the reporter. I will not allow this matter to degenerate into a controversy as to the correctness of the reporter's notes. Mr. Reddy: Then we will not be allowed to introduce any evidence at all,-is that the proposition?-if these notes are to be taken as correct? The Judge: I shall act only on the official notes, as given you by the reporter. I will hear no other testimony. Mr. Reddy: We wish to show that the notes are not correct, in so far as they differ from the report in the Bee, and that the testimony as reported in the Bee was actually given on that occasion. The Judge: I will not hear any outside testimony other than the notes of the official reporter. * Mr. Reddy: Your honor will allow no testimony except the reporter's notes? The Judge: No. Mr. Reddy: Then your honor will not permit us to put in evidence the subject-matter, the allegations of the answer? The Judge: I have made my ruling that I will hear no testimony in regard to the evidence that was taken there except what is contained in the notes of the official reporter, and they have been fully given, and I will add to that the cross-examination of Mr. Duden [the reporter] with respect to those questions that the court asked him in regard to the time when he delivered the transcribed notes to the Bee." Thereupon the defendant offered and requested to be allowed to introduce evidence in support of the various subdivisions of his answer, involving as a whole the same general issues as suggested above, but was denied such right, except to the extent that he was told he would be allowed to show that the publications were "without malice." This privilege was declined as of no avail, unless petitioner was allowed to put in his entire defense.

That the result of this action of the court in thus requiring petitioner, in effect, to submit his defense upon the evidence for the people, was, in substance and effect, to deprive petitioner of the right to be heard in his defense, is, we think, obvious. It is contended by respondent that, even if the action of the court was wrong, it was error merely, which cannot be reviewed on certiorari; that, the court having jurisdiction of the person and subject-matter, the mere method in which it exercised such jurisdiction cannot be inquired into in this proceeding, which looks only to the question of jurisdiction. If the premise were correct, the conclusion would undoubtedly follow. But with the view that the action involved no more than mere error we cannot coincide. It was error, certainly, but it was more than that. It was a transgression of a fundamental right guarantied to every citizen

charged with an offense, or whose property is sought to be taken, of being heard before he is condemned to suffer injury. Any departure from those recognized and established requirements of law, however close the ap parent adherence to mere form in method of procedure, which has the effect to deprive one of a constitutional right, is as much an excess of jurisdiction as where there exists an inceptive lack of power. "The substance and not the shadow determines the validity of the exercise of the power." Cable Co. v. Adams, 155 U. S. 689, 698, 15 Sup. Ct. 268, 360.

While the writ of certiorari is not a writ of error, "it is nevertheless," as suggested in Schwarz v. Superior Court, 111 Cal. 112, 3 Pac. 582, "a means by which the power of the court in the premises can be inquired into; and for this purpose the review extends, not only to the whole of the record of the court below, but even to the evidence itself, when necessary to determine the jurisdictional fact." If, then, by looking at the evidence, we can see that the court exceeded its power, we have a right to examine the evidence for that purpose. The evidence and proceedings in this case disclose clearly to our minds such an excess. Contempt of court is a specific criminal offense (Ex parte Hollis, 59 Cal. 408; Ex parte Gould, 99 Cal. 360, 33 Pac. 1112); and a party charged there with, although the proceeding is more or less summary in character, has the same inalienable right to be heard in his defense, especially in instances like the present, of mere constructive contempt, as he would against a charge of murder or any other crime. On this subject it is said in Rapalje on Contempts (section 111): "Contempt of court is of two kinds,-that which is committed in oper court, and that which is committed out of the view and hearing of the court. For the punishment of the first, by commitment and fine, no proceeding need be taken contradictorily with the offender, but for the punishment of the latter, by the same means, the offender must be allowed to offer evidence and argument in his defense; otherwise any judgment which the court may pronounce will be absolutely void. ' In State v. Orleans Civil Judges, 32 La. Ann. 1256, 1262, considering a case of constructive contempt, it is said: "The charge of contempt should not in any case be followed by sentence and imprisonment unless after a rule to show cause has been granted, and the party defendant therein heard and permitted to offer evidence and argument." And it is held that anything less than that would constitute a want of "due process of law," or a proceeding not in accord with "law of the land," rendering the judgment void. And the court there quote with approval this justly celebrated definition of the phrase "law of the land" formulated by Mr. Webster in the Dartmouth College Case: "By law of the land is most clearly intended the general law, which hears before it condemns, which proceeds from inquiry, and renders judgment

only after trial. The meaning is that every citizen shall hold life, liberty, property, and immunities under the protection of general rules which govern society." And in the very recent case of Hovey v. Elliott (decided by the supreme court of the United States) 167 U. S. 409, 17 Sup. Ct. 841, where, in a civil action, the court had stricken out the answer of a party because of his contempt of an order requiring him to pay money into court, and rendered judgment against him pro confesso, it was held that the act was beyond the power of the court, for the reason that it deprived the party of the right to be heard in his defense; and that the judgment so entered against him was void, even as against collateral attack. Among other things it is there said: "Can it be doubted that due process of law signifies a right to be heard in one's defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, could it be pretended that such an enactment would not be violative of the constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under the express legislative sanction would be violative of the constitution? If such power obtains, then the judicial department of the government, sitting to uphold and enforce the constitution, is the only one possessing a power to disregard it. If such authority exists, then, in consequence of their establishment to compel obedience to law and enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent." And, as showing that it is not sufficient that the court shall go through the mere form of citing a party to appear upon the pretense of giving him a hearing while in fact denying him the right in its substance, it is there said: "Until notice is given the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be by the law of its organization over the subject-matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made. It is a summons to him to appear and speak, if he has anything to say, why the judgment sought should not be rendered. The denial to a party of the benefit of a notice would be, in effect, to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to the party, ‘Appear and you shall be heard;' and, when he has appeared, saying, 'Your appearance shall not be recognized, and you shall not be heard.'” And, quoting from Galpin v. Page, 18 Wall. 350, it is said: "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant until he

has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld, where justice is justly administered." These considerations make it manifest that petitioner at his trial in the court below was denied that "due process of law" requisite to a valid conviction, and for that reason the order convicting him of contempt must be annulled. It is so ordered.

I concur: GAROUTTE, J.

MCFARLAND, J. I concur in the judgment annulling the order under review. The case is a very close one; but I think that the alleged contempt rested ultimately upon the asserted fabrication and publication by petitioner of false testimony, and his persistency in restating this version of the same as true. This being so, he should have been allowed to introduce such evidence as he had to the point that his publication of the testimony was a fair and correct statement of it. The court declined to hear any evidence from him on that subject; and the weight of authority is to the point that this ruling, being a denial of appellant's right to make a defense, goes to the jurisdiction, and is reviewable on certiorari. If petitioner had been allowed to introduce the offered evidence, the case would have presented no difficulties.

BEATTY, C. J. (concurring). A cause being on trial in the superior court, a newspaper publishes what purports to be a portion of the testimony of one of the parties to the action. The attention of the judge being called to the publication, he pronounces it grossly false from his seat on the bench. The publisher in the next issue of his paper, and while the cause is still on trial, reasserts the correctness of his report, and in coarsely vituperative terms retorts upon the judge the accusation of falsehood. Is this a contempt of court? The answer to this question depends, it seems to me, upon the further question whether or not the judge in denouncing the original report was acting in a judicial capacity. A true report of the proceedings of a court is not a contempt. A false report may or may not be a contempt, according to circumstances. If a false report is published under such circumstances as to constitute a contempt, there is but one way to deal with the matter judicially, and that is by a regular citation or attachment and a hearing. If the court or judge undertakes to act upon the matter in any other way, his action is extrajudicial, and not in his official character. Such, it seems to me, was very clearly the case here. The attention of the judge being drawn to this publication, it was natural, and no doubt commendable, that he, believing it to be gross

perversion of the facts, should so characterize it, but in so doing he was not acting as a court or judge. What he said was in no sense a part of any judicial proceeding, and the fact that he was seated on the bench at the time makes the case no different in point of law from what it would have been if his remarks had been delivered on the street or communicated in writing to the same or another newspaper. The report of the newspaper was, therefore, not an attack upon the court or an interference with the proceedings of the court, but was an attack upon the man, for which, if it was malicious and unfounded, he had the same, and no other, means of redress that the law gives to every citizen who is the victim of a libel. The facts alleged and found in the proceeding against the petitioner do clearly establish a malicious libel, but they do not, in my opinion, constitute a contempt of court, and for that reason I concur in the judgment annulling the order. ·

HARRISON, J. (dissenting). Section 1209, Code Civ. Proc., declares that any unlawful interference with the proceedings of a court is a contempt of the authority of the court; and when facts are presented to the court which could, under any circumstances, have interfered with its proceedings in the trial of a cause, it has jurisdiction to investigate the charge of contempt. No question as to the general power of the court is presented in the present case. Its jurisdiction to investigate a charge of contempt is not denied. Whether it had jurisdiction to investigate the charge against the petitioner does not depend upon any review of evidence, but is to be determined by the sufficiency of the affidavit upon which the citation to him was issued. If the facts set forth in that affidavit are sustained, its power to punish for the contempt therein charged follows as a legal conclusion. That the affidavit of Mr. Jones sets forth facts sufficient to give to the court jurisdiction to inquire into the alleged contempt, and to determine whether the acts charged against the petitioner had been committed by him, cannot be questioned, and the regularity of the procedure by which he was brought before the court is not challenged. The court, therefore, had jurisdiction to investigate the charge, and, after its jurisdiction had been thus acquired, any error by it in the course of the inquiry, either in admitting or in excluding evidence, is not the subject of review in this proceeding, and its finding of the facts upon which it based its judgment that the petitioner was guilty of contempt is also final.

It is claimed, however, by the petitioner, that the court had no jurisdiction to punish him for the contempt charged without giving him an opportunity to be heard in his defense, and that inasmuch as it refused to receive evidence which he offered at the hearing in support of certain matters which he

had set up in his answer as a defense to the charge, and refused to consider these matters, it exceeded its jurisdiction in determining that he was guilty of the contempt charged in the affidavit. The right of one charged with contempt to be heard in answer to the charge is fully conceded; but upon this as upon any other charge his right to be heard is limited to matters that are pertinent to the issue before the court. If he is allowed a hearing upon these matters, he cannot say that he is deprived of his rights without due process of law. The provision in section 1217, Code Civ. Proc., that the court or judge must "investigate the charge, and must hear any answer which the person arrested may make to the same, and may examine witnesses for or against him," does not require the court to hear an answer whose allegations have no tendency to exonerate the person from the charge, or to permit an examination of witnesses upon matters that are not relevant to the alleged contempt. The court is to conduct the investigation under the sanction of its judicial authority, but its determination therein will not be set aside upon the ground that it committed error in the course of the investigation. If the court had refused to allow the petitioner to file any answer to the charge, or if, after permitting his answer to be filed, it had ordered it to be stricken from the files, and had refused to receive any evidence on his behalf in defense of the charge, its judgment against him would have been unauthor ized. Instead of so doing, however, the court permitted the petitioner to file such answer as he desired, and also heard all the evidence which he chose to offer in support of the matters therein which were material or relevant to his defense.

In his answer the petitioner had alleged that the original publication of the proceedings was a correct statement of the testimony given before the court, and the refusal of the court to allow evidence in support of this averment is claimed by him to have been a denial of the right to be heard in his defense; but the truth or falsity of this publication was not involved in the charge of contempt before the court. The contempt with which the petitioner was charged did not consist in this publication, but in the subsequent effort on his part to compel the court to accept it as the truth in opposition to its own statement that it was not correct. A false publication of the proceedings of a trial does not of itself constitute a contempt, or render its author liable to punishment. The charge of contempt against the petitioner was the fact that after the court had stated that the testimony contained in that publication had not been given, and while the cause was still in process of trial before it a: 1 undetermined, the petitioner had published in his newspaper, in a manner calculated to destroy the freedom of the court in determining the rights