State v. Frew.

not wholly inconsistent with these great principles, upon which our free institutions, purely American, have been reared and maintained. So these doctrines, which we are considering (powers of courts to punish contempts), in being recognized by the courts must be regarded as having received a corresponding abatement of those of its lineaments which are at open war with the nature and character of our Constitution, and the actual state of things among us, under its legitimate operation, or it would be an exotic that could not germinate in our soil." Therefore courts will tolerate the regulation of the power, so that the legislature does not by such regulation substantially destroy the efficiency of the court.

The courts must have just enough power and will exercise it for their own protection, and they want and demand no more. Whether or no the legislature in its regulation has left sufficient power for the purpose, the court, which is called to exercise it, must be the sole judge, unless its judgment may be reviewed, and in that case the court of last resort would be the exclusive judge. There is no disposition in the courts to seek opportunities to exercise this power; and it will not be exercised, unless there is a necessity for it. When a judge remembers that he has no right to avenge in this manner individual wrongs, but only an injury to the court, the people's court, it becomes a matter of stern and inflexible duty from the performance of which under his official oath he dare not shrink. For he well knows, that as the ermine was spotless when he put it on, the people expect him to leave it as untarnished for his suc

cessor.

We have thus far been considering whether the legislature has the right to limit the power of courts created by Constitutions. It very different as to its power over courts of its own creation.

is

In Ex parte Robinson, 19 Wall. 505, it was held that Congress had the power to limit the right of the Circuit and District Courts of the United States to punish contempts because they were the creations of Congress. Mr. Justice FIELD, in delivering the opinion of the court in perfect accord with the authorities we have cited, said: "The power to punish for contempts is inherent in all courts; its existence is essential to the promotion of order, in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence, and invested with jurisdiction over any subject

State v. Frew.

they became possessed of this power. But the power has been limited and defined by the act of Congress of March 2, 1831. The act in terms applies to all courts; whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the Circuit and District Courts there can be no question. These courts were created by act of Congress. Their powers and duties depend upon the act calling into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is therefore to them the law specifying the cases in which summary punishments for contempts may be inflicted."

We have already seen that the power of courts created by the Constitution to punish contempts is an inherent power without which they might wholly fail in the object of their creation. When a court is created and exists by some legislative act, it follows that the power which creates must confer, and can take away its jurisdiction at its pleasure. As a consequence of this, the same power can define contempts against, and prescribe the measure and mode of punishment, or even withhold altogether from such court, the power to punish the same. These are not questions of power but of expediency only, and of this the legislature must judge. But if the court be created, and its jurisdiction conferred by the Constitution, then the power to punish for contempts inherent in such court also exists by virtue of the Constitution, and in the absence of any constitutional provision authorizing the legislature to do so, it cannot deprive such court of that power.

It is contended however that the General Court of Virginia in the case of the Commonwealth v. Deskins, etc., reported in 4 Leigh, decided that the act of the general assembly, passed on April 16, 1851, defining contempts, and limiting the power of the courts to punish the same, deprived the courts of the power to punish summarily any contempts, except those therein enumerated.

[Omitting this discussion.]

Is the publication complained of here a contempt to this court? It seems to us that the books do not furnish a clearer case of contempt. It is a contempt, because it charges three of the judges of this court, acting in their judicial capacity, with an offense, which if true is just ground of impeachment; with an offense calculated to degrade the court and destroy all confidence of the people therein. If to charge three of the judges of this court with having attended

State v. Frew.

a political caucus and advised a certain action by the same, coupled with the promise, that as a court they would sustain the action of the caucus, and then in pursuance of that pledge made more than a year ago, the same judges as a court were about to decide the case then before them as the caucus desired, is not a contempt of the court then it seems to us that nothing would constitute a contempt. If to charge a court or a majority of its members with. having prostituted their high and sacred trust to base political purposes is not a contempt, then we may truly say that such a thing does not exist, The article on its face shows moreover that it was, intended to influence the decision of the court in the cause, to which reference is therein made, and which was then pending, or to prevent the court from deciding it at the present term. That it had no such effect is not material, so far as the contempt is concerned. It first says: "The campaign is shaping itself. It leaks out that the Supreme Court of Appeals is to be brought to the rescue in a decision affirming the unconstitutionality of the exemption act, and declaring the supplemental assessment order to be lawful and right. This is in effect what was promised by the three Supreme Court judges to the democratic caucus before the order was issued." Again: "Three out of four judges of the Supreme Court told the democratic caucus more than a year ago to go ahead and rely on the backing of the court." This is a charge of infamy against the court. But it is further charged, that the decision would be hastened by the court, against the interests of one of the candidates for nomination for governor. Thus again charging the court with using its powers for political purposes. Then comes the clause, the manifest intent of which was to compel the court to decide against its supposed convictions or not now decide at all, and charging it with being capable of deciding a cause, not from its convictions, but as convenience or political desires might dictate. It says: "Of course it was not intended that the purpose of the court should be made public, and publicity may induce the court to change its mind just to show that somebody has been taking liberties with the text and misrepresenting the court. We shall see what we shall see."

[Omitting minor questions.]

It is the unanimous judgment of the court, that an attachment issue against John Frew and C. B. Hart, returnable forth with. Judgment affirmed.

Hornbrooks V. Lucas.

HORNBROOKS V. LUCAS.

(24 W. Va. 493.)

Landlord and tenant distress taking note for rent.

A landlord, taking the negotiable note of his tenant for rent, may not distrain or sue for the rent until the maturity and non-payment of the note.

GREEN, J. The only question really involved in this case: Can a landlord, who either before or after rent is due takes from his tenant a negotiable note for the rent, payable on time, before this negotiable note becomes due distrain his tenant for the rent?

[Minor matter omitted.]

But though it is clear, that the acceptance of these negotiable notes of Lucas, the tenant, by the landlords did not extinguish the rent due from Lucas, yet it seems to me, it did operate as a suspension of the right of his landlords to enforce the payment of this rent in any manner, till after the notes became due and payable. The cases in our own State above cited show clearly, that if instead of rent the claim against Lucas had been due by a simple contract, whether in writing or not, the simple taking from him of notes payable at a future time for the debt due would have operated as conditional payment and have therefore suspended the enforcement of such debt, till the notes taken for it were due and payable, an agreement being implied from the mere acceptance of the note of a debtor payable at a future time, that the creditor would extend the time of payment of the debt, till the note taken by him should become due and payable. But of course to make this implied agreement binding on the creditor, there must be some consideration to support it. This is not expressly stated in these cases in our courts generally; but in every case where the taking of a note of the debtor payable at a future time has been considered by our courts as a conditional payment of a previous debt, that is, as operating as an agreement on the part of the creditor to suspend his

Hornbrooks v. Lucas.

right of suit till the note taken by him for his debt is due, there has always been some consideration to support this implied agreement. Take for instance the last of these West Virginia cases, Bank v. Good, 21 W. Va. 455, point 3 of syllabus. This court decided in that case: "The giving of a new note for an old one which had become due the amount and maker of the two notes being the same will not be treated as a payment or extinguishment of the old note or the pre-existing debt, unless the parties so expressly agree; but it will be regarded merely as an extension of credit." But if we look at the case, in which it was thus held that the giving of the new note was an extension of the credit by implication, it will be seen (see p. 456) that the interest on the new note was paid in advance and was the obvious consideration, which moved the creditor to grant such extension of credit to the debtor. Had not this or some other consideration existed, I presume this extension of credit by the taking of a new note payable at a future time would have been regarded as rendering this agreement to extend the credit a nudum pactum; and the creditor could have sued on the old note or debt, before the new note became due and payable.

The same conclusion, it seems to me, would follow, if a new bond was given for an old bond, the amount of the bond and the obligor or obligors in it being the same as in the old bond, and the new bond being payable on time and not bearing interest till it fell due. In such case, as the obligor or obligors in the new bond would be the same and would be bound in the same manner, so that the giving of the new bond could not possibly prejudice the obligors in it nor benefit the obligee; the implied agreement to extend the credit on the old bond would, it seems to me, be a nudum pactum and void, and therefore the old bond or debt might be sued upon before the new bond was payable. But this could not be successfully done, if the new bond bore interest from its date; for this would be a sufficient consideration for the agreement to extend the credit. If however we suppose, that instead of a new bond there was given a negotiable note, executed by the obligor in the old bond and given for the same amount as the bond and at the time the bond fell due, payable at a future time without interest from its date, and no interest was paid in advance, still it seems to me the bond could not be sued on, till the negotiable note became payable and the maker failed to pay it. For the taking of the note would be an extension