¶1I most respectfully dissent from the decision in this case. The decision is evasive of the real question. The order requiring the defendant to give security was not appealed from, and the time for appealing therefrom ha.d expired. It is therefore doubtful, at least, whether that order can be reviewed on this writ of error. The court then adjudged that the defendant be imprisoned for contempt for not complying with that order. The court commissioner, on habeas corpus, discharged the defendant on his showing by affidavits that it was not in his power to perform that order. On certiorari, the circuit court adjudged that the order of the court commissioner be reversed, and that the defendant be recommitted to prison for not performing that same order. This last judgment is brought *446here by tbe writ of error, ancl that is the only judgment to which the writ is addressed. The decision is that, as the court had jurisdiction to make that original order, this last judgment be affirmed. The jurisdiction or errors of the last judgment were not considered. The office of a writ of error is to bring before the court the record, that the errors thereof be reviewed. It is not confined to the question of .jurisdiction alone. This last judgment, however, is not only void for want of jurisdiction, but is erroneous. The statute (sec. 8491, R. 8.) requires the court, before ordering the defendant imprisoned, to adjudge that the order was “ yet in the power of the defendant to perform.” This important fact was not determined by the court, but, on the other hand, the defendant made it appear, at least prima, fade, that it was not within his power to perform it. This is a condition precedent to such a judgment, and the judgment is void without it. This important question is not disposed of by the decision. If the . defendant cannot obtain relief on this writ of error, I cannot see how he can ever be relieved from this unlawful imprisonment. Why cannot this court review this judgment on a writ of error, dike any other judgment of the circuit court? That judgment is that the defendant be imprisoned, not only until he performs that order, but until he pays the costs of these proceedings. Is that lawful?
¶2By the Court.— The judgment of the circuit court is affirmed.