The sheriff’s supplemental return greatly simplifies this case. Under the order of the county court vacating the order of the court commissioner which assumed to discharge the prisoner from custody, the proceedings before both the court commissioners become immaterial to the detention of the prisoner; leaving it resting on the original order of arrest made by the judge o-f the county court. We are none the less under obligation to counsel for the learning and ability of the briefs submitted on the reargument which we had ordered, discussing grave and delicate questions not now in the case.
The constitution vests the judicial power of the state in courts which it establishes or authorizes to be established, to be held by judges whose offices it creates or authorizes to be created. This exhausts the judicial power. Att’y Gen. v. McDonald, 3 Wis., 805; Gough v. Dorsey, 21 id.; 119. But the courts of record so established are courts proceeding-according to the course of the common law. Putnam v. Sweet, 2 Pinney, 302; Callanan v. Judd, 23 Wis., 343. And the judges of these courts take, under the constitution creating their offices, the powers of judges of such courts at the common law, including the powers commonly possessed by them at chambers, at the time of the adoption of the constitution. Waterman v. Raymond, 5 Wis., 185; Conroe v. Bull, 7 *59id., 408; Re Remington, id., 643; Re Gill, 20 id., 686. Such powers of judges of the circuit court at chambers are expressly recognized in the constitutional provision authorizing like judicial powers to be conferred on other officers.
At the common law, before 52 Hen. III, ch. 23, 13 Ed. I, ch. 11, 25 Ed. III, stat. 5, ch. 17, and 19 Hen. VII, ch. 9, arrest on mesne process in civil actions was authorized only for tort vi et arms. Petersdorff on Bail, 4; 3 Chitty’s Gen. Pr., 324; 1 Tidd’s Pr., 128; 3 Black., 292. Under these statutes, prior to 12 Geo. I, ch. 29, arrest was authorized on capias ad respondendtom in all civil actions, without affidavit or order; bail being taken for the sum laid in the ae eiAcmn clause, under 28 Hen. VI, ch. 9. But under the temporary act of 12 Geo. I, ch. 29, made perpetual by 21 Geo. II, ch. 3, arrest was authorized on mesne process in civil actions, only upon affidavit of cause of action; the sum sworn to be due-being indorsed on the writ, and hail required for that amount only. In cases of unliquidated damages, however, whether ex contractu or ex delicto, in which a sum certain could not be sworn, arrest was authorized only upon order of the court or judge, made upon affidavit of cause of action, and fixing the amount of bail to be taken. This appears to have been the first use of orders to hold to bail. And even in cases of liquidated damages, in which arrest was authorized upon affidavit only without order, orders might always be made and sometimes were made to hold to bail. 3 Chitty’s Gen. Pr., 324, 326; 1 Tidd’s Pr., 128, 172; Fleetwood v. Poictier, Barnes’ Pr. Cases, 67; LeWrit v. Tolcher, id., 79; Reynoldson v. Blades, id., 108. These cases were in the common pleas, but the same practice prevailed in all the superior courts of common law.
In practice, orders to hold to bail were commonly made by the judges at chambers, although they could generally be discharged by the court only. Chitty, Tidd, ubi supra; Hadderweek v. Catmur, Barnes’ Cases, 61; Russel v. Gately, id., *6076; Treherne v. Gressingham, id., 87; Stapleton v. Stark, id., 109. The cases in. Barnes were all long prior to 1 and 2 Vict., ch. 110, wbicb counsel for tbe prisoner relied on as first giving authority to judges at chambers to make orders to hold to bail. See also Thompson v. Becke, 4 Q. B., 759, and Burness v. Guiranovich, 4 Exch., 520, after 1 and 2 Vict.
The English statutes cited, prior to the 1 and 2 Vict., came here with the common law and as part of it. Coburn v. Harvey, 18 Wis., 147; Spaulding v. Railway Co., 30 id., 110. And, until imprisonment for debt was modified or abolished in many of the states, the English rule prevailed very generally in this country from the beginning. Encyc. Am., “Capias,” “ Debtor and Creditor ”; 3 Tucker’s Black., App., 37; 2 Kent, 397; Bouvier’s Inst., sec. 2802; 5 and 9 Dane’s Abr., ch. 150; Graham’s Pr., 492; 1 Burrill’s Pr., 88, 97, 328. And the practice of proceeding on a judge’s order to hold to bail in all cases of arrest on mesne process seems to have been very common. This was certainly the practice established by statute of the territory, when the state constitution was adopted. R. S. 1839, 264.
The state constitution abolishes imprisonment for debt arising on contract. This superseded the territorial statute so far as it related to actions ex oontraotu; but so far as it related to actions ex delieto, that statute appears to have remained in force until the revision of 1849, when it was repealed. R. S. 1849, ch. 157. That revision continued the practice in actions of tort. R. S. 1849, ch. 91. And, with exceptions not material here, the same practice of arrest on mesne process, or at any time before judgment, in actions of tort, upon order of the judge of the court, is still continued by law. R. S. 1858, ch. 127; Ilsley v. Harris, 10 Wis., 95; Cotton v. Sharpstein, 14 id., 226; Re Bowen, 20 id., 300; Gibbs v. Larrabee, 23 id., 495; Wagner v. Lathers, 26 id., 436.
And we cannot doubt that, under the constitution, the judges of courts of record have power at chambers to make *61orders to bold to bail, in proper cases, in actions brought in their courts.
The arrest of the prisoner for the tort .with which he was charged by affidavit, upon the order of the judge of the county court, in which he was sued for the tort, was therefore lawful; and the order warrants his present imprisonment, unless its force has been in some way arrested or spent.
"We understand the ground on which the court commissioner made the order, since revoked, discharging the prisoner from custody, and which was relied on by counsel here, is that the right of imprisonment on mesne process expires upon recovery of judgment in the action. If that were so, it would be difficult to see any useful purpose in the right of arrest.
Bail upon arrest, and imprisonment in default of bail, go for the same purpose. “ "When the defendant is regularly arrested, he must either go to prison for safe custody, or 'put in special bail to the sheriff. Eor the intent of the arrest being only to compel an appearance in court at the return of the writ, that purpose is equally answered whether the sheriff detains his person or takes sufficient security for his appearance, called bail.... because the defendant is bailed or delivered to his sureties, upon their giving security for his appearance, and is supposed to continue in their custody instead of going to gaol.” “Upon the return of the writ, .... the defendant must appear according to the exigency of the writ. This appearance is effected by putting in and justifying bail to the action, which is commonly called putting in bail above.” “ These bail_undertake that if the defendant be condemned in the action, he shall pay the costs and condemnation or render himself a prisoner, or that they will pay it for him.” 8 Black., 290, 291.
Under our statute, the distinction between bail below and bail above is very much done away; the bail taken by the sheriff, if accepted or justified, standing as bail to the action. And the statute itself gives the undertaking of the bail, not mate*62rially different from tbe common-law bail-piece, “ that tbe defendant shall at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein.”
When the defendant fails to give bail or is surrendered by his bail, before judgment, his liability to detention corresponds with the liability of bail to the action; and his detention, unless otherwise discharged by the court, must abide a capias ad satisfaciendum. When that is issued and served, the imprisonment on mesne process ceases, and thenceforth rests upon the execution against the body. Re Mowry, 12 Wis., 52.
What may be the remedy of the prisoner, consistent with the validity of his detention, if the plaintiff should improperly and oppressively delay talcing him in execution, is not a question before us on this writ. It is conclusive of the case, before us, that his present detention is regular and lawful. And it is therefore our duty to remand him to the custody of the sheriff of Milwaukee county.
By the Oou/rt. — Ordered accordingly.