Granting for the purposes of this writ, that the Court below had jurisdiction of the subject-matter of the proceeding against the Treasurer; that the questions asked the witness were proper, and he was bound to answer them; that the commitment is regular, and that we cannot go behind it; we are still of opinion that we are bound to discharge him under the provisions of the twentieth section of the Saleas Corpus Act, which provides, that where the imprisonment was at first lawful, yet, by some omission or event which has taken place afterwards, the party has become entitled to be discharged, he shall be discharged, etc.
We do not deny that each Court is the sole judge of its own contempts; that such judgments are not the subject of review; and that comity alone should restrain Courts from interfering with each other in this behalf. But the exercise of this power is regulated by the statute. The cases in which a Court may punish for contempt, are pointed out, and the penalty fixed.
The Saleas Corpus Act has declared in what cases a party, restrained of his liberty, shall be discharged, and its provisions apply equally to imprisonments for contempt, as well as for any other cause. Admitting, as before remarked, that the petitioner was properly imprisoned, let us inquire if there was any authority to hold him after the resignation of the State Treasurer.
The proceeding was against Dr. Bates, in his official capacity; the object, to enforce a new bond. The extent of the judgment would have been an order requiring such bond, and perhaps a judgment against the officer, declaring the office vacant. This proceeding has abated by the resignation of that officer, and, having resigned, no judgment can be pronounced against him in his official capacity. The resignation has worked a discontinuance of proceeding, and the Sixth District Court has lost all jurisdiction over the matter.
If the petitioner had been fined and imprisoned for refusing to answer the questions propounded to him, that would have been a complete judgment against him, with which we would not have interfered. But there was no final judgment for contempt; the order was only provisional, and in conformity with the four hundred and eighty-ninth section of the Practice Act, which provides, that “ when the contempt consists in the omission to per*177form an act which is yet in the power of the party to perform, he may be imprisoned until he have performed it, and in that case the act shall be specified in the warrant of commitment.”
What, then, was the act required to be done ? To answer certain questions in a certain case. As long as the case was in existence, that long the party might be imprisoned, as he is held for refusing to perform an act which is in his power to perform; but the suit having abated by the resignation of Bates, is it any longer in his power to comply ? There are neither parties nor subject-matter before the Court; there is no longer a case in which the questions can be asked.
Suppose the party should now signify his willingness to answer, how could he do so ? What right has the Court to pursue a cause abandoned by the parties, over which it has no jurisdiction ? How can the party purge himself of the contempt by coming in and offering to answer questions which no one has any longer the right to ask ? The law does not require a vain act to be done. The prisoner may still be liable' to fine and imprisonment for disobeying the original Order, but he cannot be further restrained of his liberty, under the present warrant, as it is shown that it is now impossible to comply with the order, and his imprisonment would of necessity be perpetual. This principle was substantially decided in the matter of A. A. Cohen, on habeas corpus.
We are of opinion, that with the resignation of the Treasurer, the suit terminated, and that all its incidents fell with it; that the order cannot now be enforced; and that the only way that the matter could be reached, regarding it as a contempt to the District Court, would be by an attachment in that Court for contempt, and a judgment thereon. By this means, the dignity of the Court would be vindicated, while, at the same time, the prisoner would not be punished beyond the provisions of the law.
Ordered that the writ be dismissed, and the prisoner discharged.