Grab v. Lucas

ViNjn, J. No claim is made that the civil warrant was .not properly issued nor that plaintiff was not lawfully arrested thereon, but it is urged that the defendants Zierath and Magnin, being present before the'justice at the time the bond was required to be given, must be held to have participated in the illegal demand for a bond in excess of the statutory requirement. In the bond tendered, the surety agreed to secure the appearance of the plaintiff at the adjourned day, but 506 did not agree to pay if such appearance was not secured. In the bond demanded, the surety was required to pay if plaintiff did not, even though his appearance was secured, while the statute, secs. 3633, 3635, requires the surety to pay only in the event the appearance of plaintiff is not secured. The defendants mentioned were properly present, as the statute commands the officer making the arrest to notify the plaintiff. Sec. 3603. But their mere presence in court without any participation in the proceedings for the giving of the bond cannot be held to render them liable for a mistake of the justice as to the terms of the bond. They were farmers, not versed in law, and presumably were ignorant of the statutory requirements of such a bond. A verdict was properly directed in their favor. Langford v. B. & A. R. Co. 144 Mass. 431, 11 N. E. 697. The ground of liability urged against the defendant Lucas is that he had no right to place plaintiff in the county jail after the justice committed him to his custody upon his failure to 'give the bond required. Just what disposition the constable should have made of his prisoner plaintiff’s counsel fails to point out in his brief, and acknowledged upon oral argument he was unable to state. But he was certain that plaintiff should not have been put in jail. Without attempting to reply to counsel’s argument or to lay down rules indicating in what cases it is or is not proper for officers to place persons under arrest in jail, it can be said that defendant Lucas, under the circumstances of this case, was justified in placing plaintiff there for safe-keeping. No claim is made that the jail was unsanitary, or that plaintiff was needlessly placed in a cell, or abused or mistreated in any way. His detention there was only an hour, though that is not material. It might lawfully, so far as the constable was concerned, have continued till the adjourned day. Officers having persons under arrest in their custody may lawfully place them for safe-keeping in any proper and suitable place such as a city or 507 county jail, otherwise they could not be safely kept. While the primary function of a jail is a place of detention for persons committed thereto under sentence of a court, they are also the proper and usual places where persons under arrest or awaiting trial are kept till they appear in court and the charge against them is disposed of. In re Kindling, 39 Wis. 35. See, also, Gebhardt v. Holmes, 149 Wis. 428, 135 N. W. 860. While plaintiff was so kept there he was, in contemplation of law, in the custody of the constable, though the sheriff was the custodian of the jail. The court properly directed a verdict in favor of Lucas. By the Court. — Judgment affirmed.