WRIT OF HABEAS CORPUS.
Opinion, Mr. Chief Justice Paxson:
This was a writ of habeas corpus. The relator complains that he is unlawfully restrained of his liberty by the keeper of the Philadelphia county prison. The respondent makes return that he holds the relator by virtue of the following commitment :
“Be it remembered, that on the 17th day of November, 1888, on motion of--— Esquire, the court ordered: And now the said John W. Keely having been brought into court, by the attachment issued in these proceedings, and having been required by the court to purge himself of the contempt of which he is convict, or show cause why he should not be further dealt with as to the court may appear proper, and the said John W. Keely not having purged himself of said contempt, and not having shown cause why he should not be further dealt with: After hearing the said John W. Keely, and after full consideration, it is decreed and adjudged, that for the said contempt the said John W. Keely shall be committed to the county prison, to be there kept and confined in custody until he shall have purged himself of said contempt, and until he shall have been legally discharged from said custody.”
Upon the presentation of the petition, with a copy of said commitment, to Justice Stebrett, in vacation, he allowed the writ returnable before him at chambers. Upon the return of the writ the hearing was continued to the 12th of January, before the court in banc, and the relator was admitted to bail in the meantime. This was the course pursued in Common[48]*48wealth ex rel. Torrey v. Ketner, 92 Pa. 372. See also Hummell and Bishoff, 9 W. 416; Commonwealth v. Newton, 1 Gr. 453.
We might well discharge the relator upon the insufficiency of the commitment. It is not only vague, but it wholly fails to show the nature of the contempt for which he was committed. As we do not review such cases upon the merits, and only inquire into them so far as to ascertain whether the court had the jurisdiction or power to make the order, it is manifest that in many instances the parties would be remediless unless the commitment sets forth such facts as show jurisdiction. We are not asked, however, to decide this case upon technical grounds.
A certiorari having been issued to the court below, we have before us the record of the case of Wilson v. Keely, and from it we learn that the alleged contempt consisted in a refusal to obey an interlocutory order. If the court had the power to make- the order, we have no doubt it possessed the power to enforce it by attachment, and, if necessary, by imprisonment. It is true, under thé act of June 16, 1836, the punishment of imprisonment for contempt is limited to such contempts as shall be committed in open court. . It is also true that obedience to the lawful process of the court may be enforced by attachment. Imprisonment for contempt committed in open court is imposed as a punishment, and is for a definite period. Imprisonment for disobedience to the process of the court is not so much for a punishment as to enforce such process, and ceases the moment the party purges himself of his contempt by obedience. The power in both instances is essential to the existence of the court. A court that has not the power to protect itself from public insult, or to compel obedience to its lawful process, would be beneath contempt. As to the authority of the court to enforce obedience to its process by attachment, I refer to Tome’s App., 50 Pa. 285; Commonwealth v. Reed, 59 Pa. 425, in which the subject is fully discussed.
If the court below had jurisdiction of the parties and the subject matter, and the order in question was lawfully made, it possessed the power to enforce it by attachment. It is almost needless to say that the converse of this proposition is equally true. This involves a brief examination of the nature of the proceedings.
[49]*49Bennett C. Wilson filed Ids bill in the court below against John W. Keely, claiming to be the assignee of said Keely of a certain principle or machine known (by Keely) as a reacting vibrating machine, “being an independent motor or self-acting, having a revolving globe and other appliances, the said globe being the centre for the dispensation of said motor and power, and where all the actual power is produced, dependent only on itself for this production and reaction unlimited.” The bill avers that since said assignment the defendant has received divers large sums of money from the exhibition of, and sale of interests in, and from the unlawful use of, said invention, and prays discovery relative thereto; that the defendant has neglected and refused to permit complainant “ to have access to and examine the drawings, models, and machines embodying the invention referred to in the assignment hereinbefore named in the possession and under the control of said defendant; ” that complainant believes that the defendant, unless restrained by an order of this court, will sell and assign said invention to others, and dismantle and alter said motor. The prayers for relief, briefly stated, are, that the defendant be enjoined from removing the machines or models known as the Keely Motor, from the shops where the same are now located; from selling, assigning, or using the same; and particularly that the defendant be compelled to forthwith “exhibit to your orator, and permit him to inspect all models, machines, drawings, and descriptions in the possession of the defendant, of the invention referred to in the above named assignments, and known as the Keely Motor.”
Upon the filing of the bill the court below granted an ex parte injunction, which was afterwards continued until the further order of the court. A demurrer was filed by the defendant, which appears to have been overruled, with leave to answer over; a commission of experts was appointed to examine the machine, who reported to the court, on October 20, 1888; a rule for an attachment against the defendant was granted, on October 24, 1888, and upon the 25th of the same month the defendant took a rule to dissolve the injunction. I have referred to only a few of the docket entries; they are very numerous, and indicate an especially active and hostile litigation, culminating November 17, 1888, in the commitment [50]*50of the defendant to the county prison for contempt. The said commitment was based upon disobedience to the order of court of April 7, 1888. This order was as follows:
“And now, April 7, 1888, in accordance with the opinion heretofore filed in this case, it is hereby ordered by the court that the defendant, the said John W. Keely, shall within thirty days exhibit to the said plaintiff, his attorneys, and to Charles M. Cresson, Thomas Shaw, Prof. Wm. D. Marks, and Jacob Naylor, Esq., who are hereby appointed by the court as experts, the inventions, machines, or devices referred to in the plaintiff’s bill, and now known as the Keely Motor, and shall then and there in their presence operate the same or cause them to be operated, and explain the mode of constructing and operating to them.
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WRIT OF HABEAS CORPUS.
Opinion, Mr. Chief Justice Paxson:
This was a writ of habeas corpus. The relator complains that he is unlawfully restrained of his liberty by the keeper of the Philadelphia county prison. The respondent makes return that he holds the relator by virtue of the following commitment :
“Be it remembered, that on the 17th day of November, 1888, on motion of--— Esquire, the court ordered: And now the said John W. Keely having been brought into court, by the attachment issued in these proceedings, and having been required by the court to purge himself of the contempt of which he is convict, or show cause why he should not be further dealt with as to the court may appear proper, and the said John W. Keely not having purged himself of said contempt, and not having shown cause why he should not be further dealt with: After hearing the said John W. Keely, and after full consideration, it is decreed and adjudged, that for the said contempt the said John W. Keely shall be committed to the county prison, to be there kept and confined in custody until he shall have purged himself of said contempt, and until he shall have been legally discharged from said custody.”
Upon the presentation of the petition, with a copy of said commitment, to Justice Stebrett, in vacation, he allowed the writ returnable before him at chambers. Upon the return of the writ the hearing was continued to the 12th of January, before the court in banc, and the relator was admitted to bail in the meantime. This was the course pursued in Common[48]*48wealth ex rel. Torrey v. Ketner, 92 Pa. 372. See also Hummell and Bishoff, 9 W. 416; Commonwealth v. Newton, 1 Gr. 453.
We might well discharge the relator upon the insufficiency of the commitment. It is not only vague, but it wholly fails to show the nature of the contempt for which he was committed. As we do not review such cases upon the merits, and only inquire into them so far as to ascertain whether the court had the jurisdiction or power to make the order, it is manifest that in many instances the parties would be remediless unless the commitment sets forth such facts as show jurisdiction. We are not asked, however, to decide this case upon technical grounds.
A certiorari having been issued to the court below, we have before us the record of the case of Wilson v. Keely, and from it we learn that the alleged contempt consisted in a refusal to obey an interlocutory order. If the court had the power to make- the order, we have no doubt it possessed the power to enforce it by attachment, and, if necessary, by imprisonment. It is true, under thé act of June 16, 1836, the punishment of imprisonment for contempt is limited to such contempts as shall be committed in open court. . It is also true that obedience to the lawful process of the court may be enforced by attachment. Imprisonment for contempt committed in open court is imposed as a punishment, and is for a definite period. Imprisonment for disobedience to the process of the court is not so much for a punishment as to enforce such process, and ceases the moment the party purges himself of his contempt by obedience. The power in both instances is essential to the existence of the court. A court that has not the power to protect itself from public insult, or to compel obedience to its lawful process, would be beneath contempt. As to the authority of the court to enforce obedience to its process by attachment, I refer to Tome’s App., 50 Pa. 285; Commonwealth v. Reed, 59 Pa. 425, in which the subject is fully discussed.
If the court below had jurisdiction of the parties and the subject matter, and the order in question was lawfully made, it possessed the power to enforce it by attachment. It is almost needless to say that the converse of this proposition is equally true. This involves a brief examination of the nature of the proceedings.
[49]*49Bennett C. Wilson filed Ids bill in the court below against John W. Keely, claiming to be the assignee of said Keely of a certain principle or machine known (by Keely) as a reacting vibrating machine, “being an independent motor or self-acting, having a revolving globe and other appliances, the said globe being the centre for the dispensation of said motor and power, and where all the actual power is produced, dependent only on itself for this production and reaction unlimited.” The bill avers that since said assignment the defendant has received divers large sums of money from the exhibition of, and sale of interests in, and from the unlawful use of, said invention, and prays discovery relative thereto; that the defendant has neglected and refused to permit complainant “ to have access to and examine the drawings, models, and machines embodying the invention referred to in the assignment hereinbefore named in the possession and under the control of said defendant; ” that complainant believes that the defendant, unless restrained by an order of this court, will sell and assign said invention to others, and dismantle and alter said motor. The prayers for relief, briefly stated, are, that the defendant be enjoined from removing the machines or models known as the Keely Motor, from the shops where the same are now located; from selling, assigning, or using the same; and particularly that the defendant be compelled to forthwith “exhibit to your orator, and permit him to inspect all models, machines, drawings, and descriptions in the possession of the defendant, of the invention referred to in the above named assignments, and known as the Keely Motor.”
Upon the filing of the bill the court below granted an ex parte injunction, which was afterwards continued until the further order of the court. A demurrer was filed by the defendant, which appears to have been overruled, with leave to answer over; a commission of experts was appointed to examine the machine, who reported to the court, on October 20, 1888; a rule for an attachment against the defendant was granted, on October 24, 1888, and upon the 25th of the same month the defendant took a rule to dissolve the injunction. I have referred to only a few of the docket entries; they are very numerous, and indicate an especially active and hostile litigation, culminating November 17, 1888, in the commitment [50]*50of the defendant to the county prison for contempt. The said commitment was based upon disobedience to the order of court of April 7, 1888. This order was as follows:
“And now, April 7, 1888, in accordance with the opinion heretofore filed in this case, it is hereby ordered by the court that the defendant, the said John W. Keely, shall within thirty days exhibit to the said plaintiff, his attorneys, and to Charles M. Cresson, Thomas Shaw, Prof. Wm. D. Marks, and Jacob Naylor, Esq., who are hereby appointed by the court as experts, the inventions, machines, or devices referred to in the plaintiff’s bill, and now known as the Keely Motor, and shall then and there in their presence operate the same or cause them to be operated, and explain the mode of constructing and operating to them. And the said experts aré hereby authorized and directed to make such an examination of said machines as will enable them to inform the court as to their identity in construction, principle, or operation with the invention described in the complainant’s bill as having been assigned him in 1869 by the respondent, the said complainant giving the said experts such a particular description of the last mentioned invention as may be necessary to enable the comparison to be made; and the said experts shall further make such drawings of the machine known as the Keely Motor as they may consider necessary for the information of the court, and report jointly or severally; and it is further ordered that the information obtained by this inspection by the complainant and his counsel, or by the said experts, shall not be used for any other purpose than for the proper hearing and adjudication of the present proceeding.”
At the time this order was made the cause was not at issue. No answer had been filed, and, of course, there was no examiner or master. At this stage no legal testimony could have been taken. The plaintiff had obtained his special injunction, which vlas duly continued within the five days. There was then no further step which the plaintiff could properly take, except to put the case at issue. After issue joined, an exami-' ner could have been appointed and the proofs taken in an orderly manner. Instead of so proceeding, a commission of experts was appointed to examine the defendant’s machine, and the order of April 7th was made by which the defendant, [51]*51in advance of any issue, was not only required to exhibit his machine, but also to operate it, and to explain the mode of its construction and operation, although it clearly appeared that it would require considerable expense to .clean the machine, put it together, and operate it. The defendant appears to have been willing to exhibit it, and in point of fact did so. In view of this I have not considered it necessary to review the authorities upon the question of the power of the court to compel him to exhibit his machine before issue joined. That he might have been compelled to do so at a proper stage of the cause, is conceded. But to make an order not only to exhibit, hut to operate it, the practical effect of which was to wring from him his defence in advance of any issue joined, was an excessive and improvident exercise of chancery powers.- It is the more remarkable from the fact that the plaintiff’s case, as shown by the exhibits and drawings, was sealed up in an envelope and retained by the court, access to the same being not only denied to the defendant, but even to the experts appointed by the court.
It is not necessary to discuss the question how far the motion to dissolve the injunction justified these proceedings. Upon that motion the defendant was the actor, and if his affidavits failed to satisfy the court that the injunction should be dissolved his motion would necessarily fall. Aside from this the motion to dissolve was made more than three months after the order of April 7th, as appears by the docket entries.
We are of opinion that the order referred to was improvidently made. It follows that the learned court had no power to enforce it by attachment.
The relator is discharged.