stated the case and delivered the opinion of the court.
The plaintiff in error sued Edward Brinkman, as survivor of his late partner, Smid, in the Circuit Court of Grant County, to-recover a large sum of money alleged to be due from Brinkman, as such survivor, to the plaintiffs. After the institution of the suit the "plaintiffs applied to the county judge, of Grant County for a writ of ne exeat against Brink-man. The writ was accordingly issued and placed in the hands of Clise, the defendant in this action, as the sheriff of that county for execution. Pursuant to the writ,-Clise arrested Brinkman, who, failing to give bail as.required, was-held in custody. A writ of habeas corpus was issued by the-Honorable John T. Mills, the circuit judge of that circuit,, directed to the sheriff of Grant County, whereby he was-commanded to have before the judge,, at Dodgeville, on the-day therein specified, thembody of Brinkman, with the cause o-f his imprisonment. Clise complied with this order. While-the argument upon the writ of habeas corpus was in progress,. Clise put Brinkman in the charge of Judge Dunn, one off his counsel, and'absented himself. Before the argument! ivas concluded, Brinkman fled to Canada and has not re.turned. The judge refused to take any further action-in the case in the absence of Brinkman, and- thus the proceeding terminated.
This action was brought by the plaintiffs iii error against Clise for the escape of Brinkman. The cause was put at issue by the pleadings of .the parties'arid was tried-by a jury. A verdict was found and judgment rendered for tlm defeud-r *402 ant,-Clise. The plaintiffs thereupon sued- out this writ of error. It appears by the bill of exceptions found in the record that in two instances upon the trial evidence objected to by the plaintiffs was admitted and exceptions duly taken. The plaiutiffs also excepted to the several instructions given by the court to the jury. It is insisted that each of these exceptions involves an error which is fatal to the judgment.
In the view which we have found ourselves constrained to' take of the case it is unnecessary to consider either of them.
The bill of exceptions purports to contain all the testimony. The facts that the habeas corpus was issued and that the sheriff obeyed it by making the proper return and taking Brinkman before the judge who issned it, are fully proved. The testimony is uncontradicted. There is no controversy between the parties upon the subject.
By the common law, upon the return of a writ of habeas corpus and the production of the body of the party suing it out, the authority under which the original commitment took place is superseded. After that time, and until the case is finally disposed of, the safe-keeping of the prisoner is entirely- under the control and direction of the court to which the return is made. The prisoner is detained, not under the ■original commitment, but under the authority of the writ of habeas corpus. Pending the hearing he may be bailed de die in diem, or be remanded to the jail whence he came, or be committed to any other suitable place pf confinement under the control’ of the court, lie may be brought before the ■court from time to time by its order until it is determined whether he shall be discharged or ábsolutely remanded. * We-have not overlooked the statute of-81 Car. II. This doetrine has.been recognized by this court. †
*403 The statute of Wisconsin upon tbe subject is in accordance with the common law. It provides:
“ Until judgment be given upon the return, the officer before whom such party shall be brought may either commit such party to the custody of the sheriff of the county in which such officer shall be, or place him in such care or under such' custody as his age and other circumstances may require.”* *
The entire responsibility for the safe-keeping of the prisoner under this statute vests with the officer before whom the prisoner is brought piirsuaut to the writ.
When Clise, as sheriff, produced the body of Brinkman before Judge Mills, Clise’s duties as the custodian of Brink-man'ceased, and this cesser could be terminated only .by an order of the judge clothing him with new duties and responsibilities. No such order was made. The flight of Brink-man was, therefore, in no sense an escape from the custody of Clise. His custody by Clise, in the absence of an order' from the judge, would have been false imprisonment. The act of Clise in putting Brinkman in the charge of Bunn was simply a nullity. He had no authority at that time to do any act or to give any direction touching the subject.
The plaintiffs in error, according to their own showing, had not the shadow of a right to recover in this action against Clise. Conceding, for the purpose of this opinion, that the court below erred in all the particulars complained of, the' errors have done them no harm. Opposite rulings could not have helped them. - Their case was inherently defective. The defect was incurable and iuevitably fatal. When such .a defect exists, whether it be o.r be not brought to the attention of the eourt below or of this court by counsel, it is our duty to consider it and to give it effect. † This is-decisive of the case before us. The defendant in error' is-entitled to.have the judgment affirmed, and it is
Affirmed accordingly.
Notes
The King v. Bethel, 5 Modern, 19; Bacon’s Ab., Title “ Habeas Corpus,’’ B. 13; Anonymous, 1 Ventris, 330; Sir Robert-Peyton’s Case, Ib. 346; Hurd on Habeas Corpus, 324.
In re Kaine,
Revised Statutes of Wisconsin, 908, § 23.
Garland
v.
Davis,