#### *Toll Bridge v. Free Bridge.

April, 1822.

Injunction* — Court of Appeals† — Jurisdiction.‡—Where an injunction is refused by a chancellor in open court, it is competent for a judge of the court of appeals, out of court, to award it.

Same — Same—Same.—A judge of the court of appeals may award an injunction which has been refused by a chancellor in court, upon an office copy of the record in the chancery court, being presented to him, as well as upon the origina lbill itself.

Same — Award by Appellate Judge — Duty of Inferior Judge.§ — Where an injunction has been so awarded by a judge of the court of appeals, the chancellor ought to restrain any disobedience to that order, by attachment or other proper process.

This was an appeal from the chancery court of Lynchburg.

The case was shortly this: The legislature, by an act passed on the 18th day of February, 1812, authorised the erection of a toll bridge over James river, at Lynch-burg, and incorporated a company, for that purpose.

On the 24th day of February, 1818, another act was passed, authorising certain trustees, to build a free bridge across the same river, a few hundred yards above the toll bridge; but, providing as a protection to the interest of the toll bridge, that when the free bridge should be completed, the trustees should apply to the court of Hustings in Lynchburg, for the appointment of commissioners, to ascertain the balance which would be due to the toll bridge, by deducting from the sum of their advances with interest, the amount of dividends, which they had received; that this balance should be deposited in court by the trustees of the free bridge, for the use of the toll bridge; and that until that was done, no person should pass the free bridge, or transport any thing over it, under the penalty of double tolls, to be recovered by the toll bridge.

Under this act, the free bridge was so far erected, as to be conveniently practicable for horse and foot passengers. In this situation, the free bridge being in daily *use, and by the trustees themselves, and the penalty of double tolls being an insufficient remedy, the appellants exhibited their bill, before the Lynchburg chancery court, against the trustees of the free bridge, praying_ an injunction to restrain them from using the said bridge, or permitting it to be used by others, until the condition of the law should be complied with, by paying to the toll bridge the balance, which would be due them on the settlement of their accounts, which they shewed would be about $13,000.

The court made a rule on the trustees of the free bridge, to shew cause why the injunction should not be granted; and on the return thereof, and the filing of some affidavits, discharged the rule, and denied the injunction.

On an office copy of the record, two of the judges of the court of appeals awarded the injunction.

The defendants answered separately, none of them denying any material allegation in the bill, except Mitchell, and he not denying any of importance, which is not sufficiently established by the evidence.

At the October term 1821, the plaintiffs, upon affidavits that the injunction had been violated, obtained a rule against four of *82the defendants, Mitchell, Rucker, Harrison and Lee, to shew cause why an attachment should not be awarded against them.

Sundry affidavits of witnesses, upon the merits and on the rule for the attachment, were filed; together with the affidavits of the defendants, exculpating themselves from the charge of having violated the injunction. These affidavits are not important to the present report.

On the return of the rule for the attachment, it was discharged by the court, and the injunction dissolved, as having been improvidently awarded. The chancellor made two objections to the injunction: 1st, that as it was awarded in open court, it was not competent for a judge of the court of appeals, out of court, to award the injunction. *2dly, that the law did not authorise a judge of the court of appeals to award an injunction upon a transcript of the record of the chancery court, but only upon the original bill itself, with the certificate of the chancellor, refusing the injunction. In support of these positions, he referred to the act of assembly(a) on that subject.

The plaintiffs appealed to this court.

C. Johnson for the appellants; no counsel for the appellees.

*

Injunction. — See monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.

†

Court of Appeals. — See monographic *note*on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.

‡

Jurisdiction. — See monographic *note*on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.

§

Injunction — Award by Appellate Judge — Duty of Inferior Judge. — It was settled early in this century thatwkenan injunction had "been refused by a circuit court judge, and afterwards awarded by an appellate judge, it was the province of the inferior judge to enforce the same, and restrain any disobedience to the same, by attachment or other proper process, and this compelled the chancellor sitting in review of the order of his superior to enforce the same by effectual measures. Wilder v. Kelley, 88 Va. 279, 13 S. E. Rep. 483. citing principal case as authority.

The principal case is also cited with approval in Gilliam v. Allen, 1 Rand. 415; McCoy v. McCoy, 29 W. Va. 818, 2 S. E. Rep. 823; Gallaher v. City of Moundville, 34 W. Va. 736, 12 S. E. Rep 861.

JUDGE BROOKE,

April 19. delivered the opinion of the court.*

The court is of opinion, that the injunction was regularly awarded by two of the judges of this court; and is further of opinion, that the decree of the chancellor, discharging the rule for the attachment and dissolving the injunction, is erroneous. It is therefore reversed; and this court proceeding &c., the injunction is re-instated, and the cause is remanded for further proceedings, in which effectual measures are to be taken to prevent the use of the free bridge, except for the purpose of completing the construction thereof, until the terms are complied with, which are directed by the act in relation thereto.

*

**Judge Roane absent from indisposition.