delivered the following dissenting opinion: '
This cause comes up on the ground that the Judge below refused to grant the writ of habeas corpus. The record before this court does not show that the writ of habeas corpus was issued by the Judge below, or that the prisoner was even legally before the court, and the cause of his imprisonment inquired into; nor that any exceptions even were taken to the ruling of the court below; nor are any exceptions disclosed by the proceedings below.
It is before this court merely .upon the refusal of the Judge below to grant the writ of habeas corpus. No grounds are furnished for the writ of error by the proceedings below. Nor is it made the duty of the Judge below to grant the writ, unless probable cause is shown in, terms prescribed by the statute. Thompson’s Dig., 5th chap., 1st sec. Before the writ can issue, it must be shown to the court “ by, affidavit or evidence probable cause to believe that he is detained in custody without lawful authority.” What is probable cause, is a question to be decided by the court before whom the party appears for his relief, and that court must determine upon it without a knowledge of what that evidence was. It will *189be presumed that the court below acted upon the affidavit, and that the affidavit did not disclose sufficient reason for his discharge, or- that he was not in custody without lawful authority.
The judgment of the court below must be either to discharge the prisoner, admit him to bail, or remand him to custody; and this must be “ as the law and the evidence shall require.” Neither of these judgments have been rendered by the court below in terms of the statute.
There could be no judgment of the court below, as no matters of law or facts had been adjudicated, as appears from the record.
The law and the facts must have been fully weighed and ■adjusted, (3 Black, 387,) before it can become the judgment of the Court.
The office of a writ of error is to correct some error committed in the proceedings, and the proceedings must be full and complete before the cause could be heard by an appellate tribunal. Bacon’s Abridgement, Tidd’s Pr. 43.
A majority of the court being of the opinion that the writ does lie in this cause, we now come to the consideration of the grounds for which the writ was asked, and its refusal by the court below.
The affidavit of Edwards shows that he is committed for a contempt for violating an injunction and restraining order of the Chancellor of the Middle Circuit, and it is from this that he is seeking to be discharged. Edwards admits in his affidavit that it was after full hearing of the motion to dissolve the injunction and to commit by the court, that he was committed to the common jail of the county. The question before this court, as it was in the court below, is restricted to the lawfulness of the authority by which he is confined. The merits of the chancery cause out of which his imprisonment grew cannot be inquired into.
A writ of error cannot lie when a court of competent *190jurisdiction, in the exercise of its legitimate authority, lias made a commitment for contempt. In such a case, neither the court below nor the appellate court will inquire into the cause of commitment by writ of habeas corpus. Ex parte Kearney, 7th Wheaton, 38, 5th U. S. Con’d Rep. ; Lord Mayor of London, 3d Wilson, 188; Yate’s case, 9th Johnson, 395; 14th Texas, 436; 13th Maryland, 632 ; 15th B. Monroe, 607; ex parte Alexander, 2d Law Register, 44; 1st Blackford, 166; 1st Briese, 266; 21st Bagley, 18; J. J. Marshal, 1st Bibb, 598.
In the case of ex parte Kearney, the Judge who pronounced the opinion, said: “That the court, will not grant a habeas corpus where a party has been committed for a contempt by a court of competent jurisdiction.” In the ease of Yates, 9th Johnson, the whole doctrine of commitment for contempt was fully and ably discussed, and it was settled that the Supreme Court cannot discharge on habeas corpus a person committed by a court of chancery for a contempt of that court.
In the case 14th Texas, it was held that a writ of habeas corpus did not lie to reverse the action of a court, of competent jurisdiction in case for commitment for contempt.
In the case cited in‘Bibb, the Supreme Court of Kentucky say; Error to cases like the present is not specially permitted nor prohibited by onr statutes; therefore, in determining whether this writ lies, we must be governed by the general principles; and the court unanimously decide that the writ, of error does not lie in such cases, and the Supreme Court will not inquire into a case of commitment for contempt. He further says on page 603, that the Circuit Court below exercises its power of commitment free and independent of this court. This decision is fully sustained by the Virginia ease cited.
The statute, Thompson’s Digest, pages 321, §2, provides that the Superior Courts shall severally have jurisdiction to *191administer oaths, make rules, pass orders and decrees, and give such judgments as may be necessary to support their authority: to punish for contempt by fine or imprisonment, and not otherwise—the fine not to exceed in any case one hundred dollars, or the imprisonment thirty days; and shall exercise all the necessary powers appertaining to their jurisdiction respectively, according to law.
Sec. 1st, page 322, provides that a refusal to obey any legal order, or mandate, or decree, made or given by any J udge of the Superior or County Court, either in term time or vacation, relative to any of the business of said court, after due notice thereof, shall be considered a contempt and punished accordingly, &e.
It must be evident that the punishment prescribed on page 321 refers to the matters declared to be a contempt on page 322, and does not refer to those orders or judgments'as may be necessary to support the authority of the court. In this case, the order is to re-produce the cotton taken away in violation of the injunction, or pay its value into the registry of the court, and, in order to support the authority of the court, the order further directs, that Edwards' be committed until lie performs what is required. The order is not punitive. The commitment is not ordered as a punishment for a contempt in the sense intended by the law on page 322, but is a judgment intended to support the authority of the court in respect to the mandate contained in the injunction, otherwise a court would be powerless to execute its decrees which require any act to be done or not to be done by a party before it. For example: a decree for the specific execution of a contract for the delivery of a deed or other papers, and the like. ISTo just distinction exists between an interlocutory and final decree, because, in many cases the execution of the interlocutory order is essential to the final decree; and if the court cannot support its authority by *192compelling tlie performance of tlie iwiloentory order in tlie form adopted here, then the final decree will he uwle—. and will result in'nothing, because the thing to be acted on has been placed beyond the jurisdiction and power of the court. We may admit in this case, without prejudice to the action of the court, that no punitive order punishing for a contempt can exceed one hundred dollars, in case of fine, or thirty days, in case of imprisonment. But that does not affect the question here, for here the order is not punitive, and the party need not have gone to jail at all, or need not have remained there; a simple compliance would have satisfied the order at any moment; and it was for Edwards to say, by his own act, whether he should be imprisoned at all, or how long he should remain confined.
A due consideration of tlie law, therefore, will, it is believed, satisfy us that the provision of the statute on page 831 does not apply to- this case, and that the decision of tlie court below should have been confirmed.