State ex rel. Mason v. Harper's Ferry Bridge Co.

16 W. Va. 864, 1879 W. Va. LEXIS 67

• Court: West Virginia Supreme Court
• Decided: December 26, 1879
• Status: Published

Opinion

Green, President,

delivered the opinion of the Court:

Two preliminary questions have arisen, which we will dispose of before deciding these cases on their merits.

Syllabus 1. The first of these questions is: Can this Court proner- • i . , , , ‘ ly hear evidence m these casas, or must they be heard only on the answers of the defendants to the rules issued against them ? In proceedings of this character the weight of the authorities is in favor of the admission of other evidence than the answers of the defendants to the rule; and in our judgment this is the proper rule. See Crooks et al. v. The People, 16 Ill. 537; Case of J. V. N. Yates, 4 Johns. 373; Commonwealth v. Dandridge, 2 Va. Cas. 408; Sed vide Wells Case, 21 Gratt. 500. This Court will therefore read the affidavits of James M. Mason, Charles J. Faulkner and ~W. H. Travers, and the other affidavits filed in considering these cases.

The next enquiry is: How should these cases be entered on our order book, if judgment should be given against the defendants? The authorities hold, that before the attachment issues, the proceedings are to be entitled in the names of the parties; but afterwards, in the name of the State. See DuBois v. Philips, 5 Johns. 235; B. & O. R. R. Co. v. City of Wheeling, 13 Graft. 57.

Syllabus 2. Supposing that the supersedeas awarded by this Court was in full operation and effect, when it was disregarded by the defendants, the first question to be determined is, whether such conduct by the defendants would be a contempt of this Court, of the circuit court of Jefferson county, or of the county court of Jefierson county. The general rule of course is that where a supersedeas is issued, or any order is made by this Court, and it is disobeyed, such disobedience is a contempt of this Court. See McLaughlin v. Janney, 6 Gratt. 609; Smith v. Caldwell, Sneed (Ky.) 341. The question is: Does an appeal and supersedeas to a decree or order dissolving an injunction constitute an exception to this general rule? It might at first blush seem to do so, because it might perhaps be held, that the supersedeas in such a case had only the effect to suspend the operation of the order dissolving the injunction, and that thus the injunction became again operative, and if violated, it would be a contempt of the court which awarded the injunction, and not of this Court which granted the supersedeas. But the proper view of the subject is, that the supersedeas issued by this Court operates proprio vigore to forbid the parties, on whom it is served, to do those things which the order of the circuit court dissolving the injunction permitted them to do. And though the things, thus forbidden to be done by the supersedeas issued by this Court, are identically the things which the injunction granted in this case by the county court forbade the parties to do, yet this super-sedeas or new order by this Court operates itself directly on the parties, and if they do what it forbids them to do, they must answer for their contempt of the sujoersedeas to this Court which issued it.

These views of the effect of an appeal and supersedeas to an order or decree dissolving an injunction are deducible from the opinion of Judge Allen in Jeter v. Longhorne, 5 Gratt. 208, in which opinion all the judges concurred except Judge Baldwin. "

This it would seem was also the opinion of the court in Turner v. Scott et al., 5 Rand. 333. In that case a decree was rendered dissolving an injunction, which had been awarded. From this decree an appeal from and supersedeas to the Court of Appeals was had. What the order of injunction forbade was done by the party; and the Court of Appeals awarded a rule against him to show cause why he should not be attached for his contempt. They by issuing this rule appear to have regarded the conduct of the party, who violated the injunction, as in contempt of the Court of Appeals by violating their su-persedeas after its service. It is true the court said it entertained some doubt, whether such improper conduct should be punished by the Court of Appeals, or by the chancery court which awarded the injunction, but they nevertheless issued the rule.

It seems to me therefore, that, if the supersedeas issued by this Court was effective and in operation, when it was served on the defendants, it must be regarded as forbidding them to act, as the order of Judge Hoge in vacation authorized them, that is, as though they had never been enjoined, and required them to actas though the injunction, which this order of Judge Hoge’s dissolved, had never been dissolved, and was in full force; and that if, when this supersedeas was in full force, and they had notice thereof, they proceeded to put up said bridge, they were doing that which was forbidden by the said superse-deas, and are in contempt of this Court, and properly punishable by it.

syllabus 3. The twenty-seventh section of chapter one hundred and forty-seven among other things provides, that “courts and judges thereof may issue attachments for contempts, and punish them summarily, in case of disobedience of any person to any lawful process or order of the court.” It is very questionable, whether the courts have not a right to punish summarily for some, other sorts of con-tempts than those specified in this act, though it does say that summary punishment shall only be inflicted in the cases specified. A similar statute exists in Arkansas, yet the Coutt of Appeals in that state held that they had a right to punish summarily, as for a contempt, the publication of a libel made while the court was sitting, charging that the court had been bribed to render a certain decision, though, such a contempt was not among those enumerated in the statute as the only ones to be punished summarily. This decision was based on the ground, that to punish for contempts summarily was inherent in all courts of justice; that these rights were founded on principles co-eval and necessarily co-existent with the administration of justice in every country; and while the Legislature may regulate the exercise of this power, yet they cannot abridge either the express powers granted to the courts by the constitution, nor those necessarily implied when judicial power was conferred on the courts by the constitution. The State v. Morrill, 16 Ark. 390. The questions so well discussed in this case are questions, which may become very important; but they do not arise here, as the statute I have referred to authorizes this court to punish summarily by attachment in such a case as the one now before this court; nor is there any legislative limitations as to the punishment, which the court may summarily inflict in such a case as the present, though the statute does in some sorts of con-tempts of courts impose limitations on the extent of the punishment they may summarily inflict. See also Ex parte Adams, 25 Miss. 885, and Ex parte Hickey, 4 Smed. & M. 751.

The next enquiry is : Have the defendants been guilty of any contempt of this court, or, to use the words of our statute, have they “disobeyed any lawful process of this court?” The first question is: Was the superse-deas issued by the order of this court such a process as they had a right to order to be issued in such a case Was it “lawful process ? :

Syllabus 5-Syllabus e. Syllal)us 9 It is settled by the authorities, that, if this court had no jurisdiction to award this process, the parties cannot be punished tor a contempt in disobeying it; for in such a case the order of this court granting the supersedeas might be treated as a mere nullity. See People v. O’Neil, 37 Cal. 109; Swinburn v. Smith, Judge, &c., 15 W. Va. 500. On the other hand, if this court had jurisdiction to award this supersedeas, it is immaterial, whether it was properly ordered, or whether it ought not to have been ordered upon the merits of the case. If this court had jurisdiction, the defendants are bound to obey its supersedeas, though the court may have erred in granting it. The court had jurisdiction, though the case made in the petition did not entitle the plaintiff to an appeal and supersedeas, if this conrt had under the law the power to decide whether the petition entitled the plaintiti to a supersedeas or not. See People v. Sturtevant, 9 N. Y. (5 Selden) 263; Kaye v. Kean, 18 B. Mon. 847; The Erie Railway Co., v. Ramsey, 45 N. Y. 644; Sullivan v, Judah, 4 Paige 444. The jurisdiction of this court to award an appeal and supersedeas to this order of the circuit judge made in vacation seems to us to be very clear. The Session Acts of 1877, ch. 44, § 1, ¶ 4, p. 52, expressly confers on this court jurisdiction to grant appeals and supersedeas in any cases in chancery wherein there is an order of decree dissolving an injunction. This necessarily confers on this court the power, and imposes on it the duty, to determine whether this order of Judge Hoge, made in vacation, did, or did not., dissolve the injunction in this case at the end of twenty days, the bond required not having been given. And if this court was of the opinion that this order did so operate as a dissolution of this injunction, and that there was probable error in the granting of the order, it was not only in the power of this court, but it was its duty, to award the appeal and supersedeas..

Syiiabus io. Syllabus 7. When this cause is heard on its merits, this Court will ^ear an^ consider all arguments, which may be present-ecj^ gj10w tha,t this order made by Judge Hoge in vacation did not, and could not, operate as a dissolution of tjie injunction. But in this proceeding against the defendants for disobeying this supersedeas of this Court it will not enquire, or consider, whether it erred in judgment in awarding this supersedeas. It had clearly the right to consider and act upon the question, whether this order did, or did not, amount to a dissolution of the injunction after twenty days, the injunction bond not being given within that time; and if it did, this Court clearly had jurisdiction to award this supersedeas, and the defendants were bound to obey it, though they may have thought it ought not to have been awarded by this Court. If they thought that this Court had misapprehended the effect of this order of Judge Hoge, they should have moved this Court to set aside the appeal and supersedeas as improvidently awarded. But so long as it remained in force, they were bound to obey it. We could not therefore even consider in these cases, as now presented to the Court, the argument of the defendant’s counsel that the injunction was not dissolved by this order of Judge Hoge, made in vacation, but by the option of the plaintiff in failing to give the additional bond required within twenty days.

>SyIlabusll But as the supersedeas awarded by this Court was not to take effect till the supcrsedeas-bond was executed, a question arises, whether this bond was given at such a time as to render the process of supersedeas effective and valid. To make it valid, it is insisted it should have been executed before the final decree in the circuit court dismissing the bill was rendered; that this final decree in effect dissolved the injunction, and though the first dissolution of the injunction by the order of the court in vacation was superseded by the giving of the supersedeas-bond and the service of the process, yet this would have no effect on the dissolution of the injunction produced by the final decree, and which was not superseded. But, while it is true that the final decree of the circuit court had not been superseded by any order of this Court, it had been suspended by an order of the circuit court for sixty days, to afford the plaintiff an opportunity to apply to this Court for an appeal from and supersedeas to this decree and till the expiration of these sixty days the final decree of the circuit court was inoperative, and this Court having superseded the dissolution of the injunction by the order of the judge in vacation, and the supersedeas-bond having been given, it seems perfectly clear, that till the expiration of these sixty days after the final decree the injunction was in full force by reason of this Court having superseded the order dissolving it, and the defendants having within these sixty days proceeded to build their bridge were in contempt of this Court in disobeying the process of this Court, which was in full operation, when they disobeyed it.

Again by the final decree the plaintiff’s bill only was dismissed; and the court omitted in it to dissolve the injunction. This omission was obviously not accidental, but designed, the circuit court obviously regarding that there was no injunction then in force, it having been dissolved by the order in vacation.

We conclude therefore that after the giving of the su-persedeas-bond by the plaintiff and the service of the process on the defendants they were enjoined from proceeding to build this bridge, at least till after the expiration of the sixty days from the entry of the final decree, during which time it was suspended ; and whether the order granting this supei'sedeas was issued improvidently, or not, while it was in force the defendants were bound to obey it. See Davis v. The Mayor of New York, 1 Duer 451.

Syllabuss. The defendants, as a justification of their disobedience of the process of this Court, undertake to prove that the plaintiff'had verbally agreed with them, that he would abandon this appeal and supersedeas. This is proven by affidavit of William H. Travers and George W. Green ; but it is not proven by the affidavit of Charles j ]?auikner; on the contrary it would appear from his letter, that he did not understand that any such express understanding existed; for in his letter he states, that the abandonment of the supersedeas by the plaintiff, Mason, is a legal conclusion to be drawn from the tact, that he, Mason, urged the final hearing of the cause ; and yet his affidavit shows such active participation by Mr. Faulkner in whatever arrangements were made, that it is difficult to suppose he could have been ignorant of an express agreement made by the plaintiff, Mason, to abandon his appeal and supersedeas. Mason in his affidavit positively denies, that he ever did agree to abandon his appeal and supersedeas. It is however in these proceedings for contempt of the process of this Court unnecessary to consider this question, or to determine the question of fact in controversy, because whether true or false it is immaterial in these proceedings. For if the plaintiff, Mason, had expressly or impliedly agreed to abandon his appeal and supersedeas, the defendants should have applied to this Court to dismiss the appeal and supersedeas, especially when they knew that the plaintiff, Mason, denied that he had ever made any such agreement. They ought not for such a reason to have disobeyed the process of this Court, while it remained in full force. See People v. Berger, 53 N. Y. 405. If the supersedeas awarded by this Court had been made effective by the plaintiff giving the required bond, before the circuit court heard and determined the case on its merits, perhaps the plaintiff by assenting that the circuit court might proceed with the cause, after this Court had suspended its right to proceed, might have vaived his right to prosecute his appeal and supersedeas. See Fairfax v. Moses’s ex’r., 4 Munf. 129.

In this case the circuit court, when it proceeded to hear this cause on its merits, had jurisdiction of the causes ¡ and the supersedeas awarded by this court had not become effective then. The allegation of the defendants is not, that the plaintiff is estopped from prosecuting his appeal, because he assented, after it was fected, to the circuit court’s proceeding as though it had never been granted, but because he agreed by matter in pais not to perfect this supersedeas and afterwards did it in bad faith. If this be so, it furnishes ground for this court to dismiss the appeal and supersedeas, but it furnishes no excusé for the disobedience by the defendants to. the process of this court, while it remains in full force.

syllabus 4. The advice of counsel may be under some circumstances a palliation to some extent of the offence of their clients in disobeying the legal process of a court but the extent, to which it is a palliation, must depend upon the character of the advice and the circumstances under which it was given. See The People v. Gompton ei a,l., 1 Duer 513. In the present case the advice relied upon by the defendants as an excuse or palliation of their offence is contained in a letter of Charles J. Faulkner to the president of The Harper’s Ferry Bridge Company, of which the following is a copy :

“ Martinsbtjrg, November 26, 1879.

“ George GREen, Esq.,

“President Harper’s Ferry Bridge Company :

“Dear Sir : — I received by to-night’s" mail a letter from secretary Myers, enclosing a mandate of the Supreme Court of Appeals of West Virginia, with a note of its service upon you ; also a letter from my distinguished associate, Hon. William H. Travers, who by his ability and fidelity has already rendered you so much important service in your case. I do not give to Mr. Mason’s late proceedings the serious aspect which my friend, Mr. Travers, does ; I look upon them as rather a subject of laughter than a ground for serious apprehension. There is nothing at present, according to my judgment, which can restrain you from proceeding with the construction of your bridge. There is ro injunction now pending in any court which forbids the work to Procee& I do not see how your continuing prosecution work can subject you to the charge of being in coutempt to any court. Your action would not be in contempt of the county court, for it has no longer any jurisdiction or control over the subject. It cannot be in contempt of the circuit court, for that court has already adjudicated a dissolution of his injunction, a dismission of his bill, and has declared that he never had at any moment a right to arrest your work. It cannot be in contempt of the Court of Appeals, for that court has never is • suer] any order restraining the prosecution of your work ; all that it has done has been to supersede an order made by Judge Hoge in vacation enlarging the injunction-bond, and dissolving it if he failed to give such additional bond. He could have given that bond at anytime before the final dismission of his bill; but he refused to do so, pressing the case for a final hearing upon the bill, answers, exhibits and depositions ; thus virtually abandoning his appeal, and waiving all benefit that he might have derived from it. I cannot see how the execution of this bond after the final hearing of the case and the dismission of his bill can possibly reinstate his injunction. I can therefore give you no other advice upon the subject but to go on with your work, and if he shall adopt any further proceedings in the case we shall meet it with energy and firmness, and I think fully vindicate your action against all his attempts to annoy you and to frustrate the construction of your bridge.

“Very truly yours,

“Charles J. Faulkner.

“P. S. — It will save me a little trouble, as I am now in the midst of our court, if you will show this letter to my associates, Messrs. Davies and Travers, and if they do not concur in my views, I will cheerfully reconsider them and take such other course as may be deemed advisable.

“Faulkner.”

Mr. Faulkner had been employed, as counsel in this case only about one week before this letter was written; in his affidavit he says, a day or two before the entry the final decree, which was November 21, 1879. It was written hastily the same night that he was informed that the supersedeas of this Court had been served on the defendants. It was written during a term of the court in Berkeley, and while he was engaged in the business of that court, as he expresses it in his postscript, “in the midst of their court.” He of course had no opportunity, while answering the letter he had received, or while preparing to answer this letter, to examine the record, which was in Jefferson county. I infer that he had never seen the order of Judge Hoge made in vacation on September 2, 1879, and to which this Court had granted a supersedeas, which he advises his clients they might safely disregard, nor had he ever been correctly informed, what was the true character of this vacation-order; for in his letter Mr. Faulkner thus speaks of this vacation-order: .“All that the Court of Appeals have done has been to supersede an order made by Judge Hoge in vacation enlarging the injunction-bond and dissolving it, if he failed to give such additional bond. He could have given such additional bond at any time before the final dismission of his bill, but he refused to do so, &c., thus virtually abandoning his appeal and waiving all benefit he might have derived from it.” Mr. Faulkner, when he wrote this letter, had evidently not been informed, that by the very terms of this order Mason was given but twenty days from its date in which to give this additional bond, and that he was not permitted to give this bond after the 22d day of September. On the contrary, Mr. Faulkner evidently supposed he was by the terms of the order permitted to give the bond at any time before the final hearing of the case on November 21, 1879, and that Mason’s urging the trial of the case then, and still refusing to givG this bond, in Mr. Faulkner’s opinion, amounted to an abandonment of his appeal. Mr. Faulkner thus, it seems, based his opinion, that this appeal and supersedeas had been abandoned, in part upon a misapprehension of (he character of this vacation-order, believing, as he did, that it ]y[ason any time pending the case to give this additional bond and make the injunction effective,

j also infer from this letter, that Mr. Faulkner, when he wrote it, had not been informed, that the final decree rendered on November 21, 1879, was not then in force, but had been suspended by an order of Judge Hoge; and this inference is admitted to be right, as Mr. Faulkner in his affidavit says, until the 12th day of December, 1879, he had not heard that this final decree of Judge Hoge had been suspended and was not in force. Mr. Faulkner’s letter on its face shows, that he based the advice he gave his clients principally on the fact, that this final decree of the circuit court was in force. The rendition of this final decree, on which he so much relies to justify his advice, would of course have been regarded by him as entirely immaterial, if he had been at that time informed, that this decree had been suspended for sixty days. It would seem too, that Mr. Faulkner was misinformed of the grounds on which Mr. Mason threatened to hold the defendants responsible for contempt of court, if they proceeded with the building of this bridge-His letter would seem to have been written on the supposition, that after the final decree of the circuit court, which Mr. Faulkner did not know had been suspended, Mr. Mason had executed the additional bond of $2,500.00 required by the vacation-order of Judge Hoge, and that, because of his having so done, he claimed that the injunction was in force and could not be violated without the parties being in contempt of court.

Mr. Faulkner no where in his letter refers to any other bond than this additional bond, and referring apparently to it he says in his letter: “ I cannot see how the execution of this bond after the final hearing of the case and dismission of his bill can possibly reinstate his injunction.” If Mr. Faulkner here refers to this additional bond, as he seems to do, it being the only bond he had before spoken of, it would be apparent that he was laboring under a great mistake as to the grounds, on which Mr. Mason threatened to hold the defendants sponsible for contempt of court, if they proceeded with the building of the bridge. It tvould indeed, as Mr. Faulkner seems to have considered, been absurd and a fit matter for laughter, had Mr. Mason supposed that the execution of this additional injunction-bond, after the case was finally decided and the bill dismissed, could have revived the injunction. It is possible however, that Mr. Faulkner was not misinformed as to this point, though he obviously was as to the other to which we have referred. He may possibly have intended by this bond executed after the final hearing of the case to refer to the supersedeas-bond in the penalty of $800.00, which this court had required. For though he had not mentioned in his letter this bond, yet he must have known that it had been executed, as in his letter he mentions the fact that the supersedeas had been served on the defendants, which it could not have been till after the execution of this supersedeas-bond.

The defendants therefore knew that this letter was written by counsel, who was unfamiliar with the case, and who had been employed in it by them only about a week before ; that it was written during the session of the Berkeley county court, -while this counsel’s mind as well as time was devoted to other business; that it was written hastily and without access to the record so as to afford him an opportunity to ascertain the real facts of the case; and they ought to have known that very important facts were misunderstood by Mr. Faulkner, and that an important -fact, the suspension of the final decree for sixty days, he did not know. It was obviously therefore their duty not to have acted on the advice given in this letter, till Mr. Faulkner was correctly informed as to all the facts of the case, and had the time to give a careful examination of the law which should govern such a case, after all the facts were made known to him. They had been advised by Mr. Travers, their original coanseh who was well acquainted with all the facts of j-j-jg eage L1p (-0 the final hearing, that they would incur serious responsibility in proceeding with the building of ^ejr bridge. As prudent men having proper respect for the law and for the orders of this court, they ought not under these circumstances to have acted on this advice. This advice however accorded with their wishes and supposed interest, and they assumed the grave responsibility of proceeding with the building of their bridge, relying, we suppose, on the promise of Mr. Faulkner, that if proceeded against therefor, he would meet the proceeding “with energy and firmness, and he thought fully vindicate their action.”

In their answer to the rules in these cases the defendants rely upon the advice of counsel asan excuse or palliation of the offence with which they were charged, stating it only in a general manner, and two of the defendants, Martha Walsh and G. W. Green, and G. L. Myers the secretary ,of The Harper's Ferry Bridge Company, the third defendant, in a joint affidavit made by them, say in general terms, “that they were advised by their counsel, Hon. C. J. Faulkner, Hon. William H. Travers and Charles Davies, to disregard a paper served on them by James M. Mason, and to proceed with the construction of their bridge; and that it was on account of this advice that they did so.” Such a general statement is entitled to very little weight or consideration. When parties accused of a contempt of court rely on the advice of counsel as an excuse or palliation of the offence, which which they are charged, they should state in detail the precise advice given them, and all the circumstances surrounding the giving of the advice, in order that the court may from the character of the advice, and the circumstances under which it- was given, determine whether it is any palliation of the offence, and if a palliation, to what extent. To permit a general statement, that their counsel gave such advice, to be an excuse or palliation of such an offence would furnish to parties disobeying the legal process of the court a very facile mode of escaping all punishment. See People v. Gompton et al., 1 Duer hi3. Neither Mr. Travers nor Mr. Davies in their affidavits state, that they gave any such advice. And it would hardly be just to them, and especially to Mr. Travers, to infer that they, and especially Mr. Travers, had been called on by the defendants to examine carefully the case and to give their or bis opinion, whether the defendants could safely proceed with the building of this bridge. If the advice was given in such a manner, it would be a palliation of the offence ; but we do not think it atall probable, that it was so given. Mr. Davies or Mr. Travers may have said casually to some of the defendants something, which may have induced them to go on with the work, predisposed as they were to do so. But that a grave opinion was given, especially by Mr. Travers, after being called upon to give the question a careful examination seems highly improbable. We see from Mr. Faulkner’s letter, that he had told the defendants, that it would be assuming a grave responsibility for them to go on with this work. Mr. Travers in his affidavit states, “that .he knew nothing of the suspending order of Judge Hoge of the 24th of November, 1879, till the 8th of December, 1879.” It would seem to be very unjust to Mr. Travers to infer, that he had been called upon to give an opinion after careful examination in a case which he knew involved serious responsibility, and that this opinion had been given upon so careless an examination, that he had failed to ascertain that Judge Hoge had entered of record an order suspending the operation of his final decree for sixty days.

The suspension of this decree is obviously a most important fact in determining the question, on which we are to infer Mr. Travers’s opinion was asked. He had every reason to suppose that Mr. Mason would ask for such a suspension; and he knew he was entitled to obtain such suspension-order, if he asked for it. He could ^ave ascertained in one minute, whether this final decree was suspended, by simply going to the clerk’s office and examining the record. And it would not be just to him for us to infer that he had ever been called upon to ex-amjne carefully the facts and give his opinion; for in so doing we would without evidence be charging him with gross and inexcusable negligence. Unless he was thus called upon by the defendants to carefully examine the subject, they could not rely upon any loose words he may have spoken to them as palliating their offence tp any considerable extent.

Their conduct ought not perhaps under all the circumstances to be regarded as a wilful and deliberate disobedience of the process of this Court; but it must still be regarded as an inconsiderate and reckless disobedience of the process of this Court, done with full knowledge that they would be held to responsibility for their conduct. They deliberately ran the risk of disobeying the process of this Court without any careful or proper examination of the question, whether they would be justified in what they were about to do ; and in so doing they were guilty of an inexcusable contempt of this Court.

The right of this Court to punish for such an offence is inherent and essential for its protection and existence. The discretion involved in this power is in a great measure arbitrary and undefinable ; and yet the experience of ages has demonstrated, that this arbitrary discretion in courts is perfectly compatible with civil liberty and auxiliary to the ends of justice. See Yates v. Lansing, 9 Johns. 416, 417. Accordingly our statute has not attempted to limit this arbitrary discretion of the courts, when the contempt is a disobedience of its lawful orders or process, as in this case. ■

Sometimes the courts order the improper act, which has been done in disobedience of its lawful process or orders, to be undone by the defendants, as that a deed thus improperly executed should becancelled. See Vose v. Reed et al., trustees, 1 Wood 653; or, where an execution has been thus improperly levied in disobedience of an order of the court, that the defendants should restore the property thus illegally levied upon. See Smith v. Caldwell, Sneed 341. This is generally done, when justice to some other party can only be effected by undoing the act illegally done. "When this is not the case, the courts for such contempts generally inflict a fine or imprisonment, or both, on the defendants according to the circumstances of each case. If the court sees that the disobedience of the process of the court is a high-handed and wilful contempt of its authority, it inflicts not only a fine, but also imprisonment on the defendants. If, however, the court sees that the offence was committed, not wilfully and deliberately, but inconsiderately and without due respect to the law and the court, it inflicts usually a fine only on the defendants, the amount of the fine being fixed with reference to all the circumstances of the case.

In the case before us no injury will be done to any person by this court declining to require the defendants to pull down so much of the bridge as has been built by them in disobedience of the process of this court; and it therefore will not order this to be done. Nor will we order the imprisonment of any of the defendants, as taking a liberal view of all the facts and circumstances we have not concluded that the defendants, with full knowledge that they were about to violate the order of this court, wilfully disobeyed its process. We will confine ourselves to the infliction of a fine on each of the defendants for what we hold to be an inconsiderate and reckless disobedience of legal process issued by this court.- The amount of this fine, which under all the circumstances we have agreed upon as proper, is $50.00 on each defendant. We are also of the opinion, that, as this disobedience of this supersedeas was calculated to impair and prejudice the remedies of said James M. Mason in his said appeal and supersedeas, he had a right to originate these proceedings ngain.st the defendants; and that the costs, which have been incurred by him or which most be paid by him, and which amount to $46.10, should also be paid to him by the defendants, Murtha Walsh and George W. Green. Following the precedent in Lane v. Lane, 4 H. & M. 437, the fines and costs to be paid by said Walsh and Green should, if not paid in ten days, be enforce by their imprisonment, and the fine against The Harper’s Ferry Bridge Company should be enforced by execution.

It must therefore be ordered, that the said Murtha Walsh and George W. Green and the said The Harper’s Ferry Bridge Company for their misconduct and contempt of this Court be each fined for the use of the State ot West Virginia $50.00, that execution for its fine should be awarded against The Harper’s Ferry Bridge Company, and further that said Green and Walsh do each pay the one-half of $46.10, the costs incurred by J. M. Mason in these proceedings, or by the State of West Virginia which he must pay, and that said fines and costs imposed on them shall be paid to the sheriff of Jefferson county within ten days from the time the judgment in this case is entered, and in default thereof the said sheriff of Jefferson county must be commanded in the name of the State of West Virginia to arrest either of said parties, who may be in default, and commit him to the jail of Jefferson county, until the said amount due from him is paid, or until this Court shall order his discharge; and when the sheriff has collected said sums, he shall pay said costs to James M. Mason, and the said fines he shall pay into the treasury of the State of West Virginiaand he shall report his proceedings herein to to this Court on the first day of the next term,

Judges Haymond and Johnson Concurred.