#### Gebhardt, Respondent, vs. Holmes and another, Appellants. Same, Appellant, vs. Same, Respondents.

*October 25*—December *5, 1911.*

*April 6*

April *23, 1912.*

(1) *Cause .of action: Legal wrong: Good faith.*(2) *Special verdict: Change by court: Questions not answered.*(3-17, 23, 25, 26) *Sheriffs: Duties: Liability: Arrest and bail: Custody of prisoner: Jail limits: Escape: Deputies: Nonofficial custodians: Agreement to produce prisoner: "Validity: Statutes: Construction.*(.18-23, 27) *Conspiracy: "When actionable: Lawful acts.*(24) *Foreign statutes: Pleading: Evidence.*

A sheriff having mesne process in a civil action to arrest a defendant, who was a minor, in the presence of the latter and his father, explained the papers, left copies with the latter, and took his promise to produce the son at the sheriff’s office at the county seat the next day. Before the time therefor, the father beings advised that his son was not in legal custody and was free to depart from the state, in concert with another, who had knowledge of the facts, assisted him to do so. Upon plaintiff obtaining judgment and failing to collect it by execution, he successfully sued the sheriff for damages for a voluntary escape. The latter then sued the two assistants to recoup his loss. The jury found the alleged prisoner did not submit to arrest; hence they omitted to pass upon whether, at the time of the concert, the father’s codefendant knew of such a submission. The court changed the finding to the affirmative, refused to grant a new trial as to the codefendant, or pass upon the omitted matter, or require the jury to pass upon whether at the time of the concert defendants knew the son was under arrest or their conduct would injure the sheriff, rendered judgment against the father for the officer’s damages, and dismissed the action as to his assistant.

*429Assuming, without deciding, that there was a submission to arrest, the following are the ruling legal principles:

1. If one commits a legal wrong to another he cannot avoid compensating such other for his actual legal damages because of having acted in good faith.

2. In case of a special verdict respecting two defendants, in circumstances where either or both may be liable, and a negative, resulting in nonliability as to one, which likewise exonerated the other, and so omits to answer a following vital question as to such other, and the court changes the finding as to the controlling question, the cause should not be concluded as to such other without such omitted matter being passed upon.

3. A sheriff having a warrant to arrest and hold to bail, is in duty bound to, with reasonable promptness, arrest the defendant and retain him in official custody until released on bail according to the warrant, or otherwise in due course of law, or by consent of plaintiff.

4. Failure of duty to make the arrest in the circumstances stated, renders the officer liable to the plaintiff for the pecuniary loss sustained.

5. Failure of duty as to retention in official custody, barring disturbance beyond human control, results the same.

■6. In case the officer suffers an escape, whether voluntary or involuntary, he is responsible to the plaintiff within the limitations stated.

7. An officer may, at his peril, allow a defendant in arrest under fnesne process freedom from official restraint, provided he produces him upon the return day of the writ or time equivalent thereto.

8. If an officer, in the circumstances stated, suspends official custody for any time, whereby he becomes unable to produce the defendant as stated in No. 7, he incurs liability for the legal damage to plaintiff, dischargeable only by payment.

9. A sheriff may entrust execution of a warrant to an official assistant, subject to personal responsibility for that assistant’s conduct as if it were his own.

10. An officer having executed a warrant to arrest and hold to bail, by taking the defendant into custody, commits an actionable breach of duty by entrusting, as matter of favor or convenience, the prisoner to nonoffieial control.

11. In the circumstances stated in No. 10 the instant official custody of the person is broken, an actionable escape will have occurred.

12. In case of official custody being broken as suggested in the fore*430going, and there being an escape effected, there cannot be a subsequent escape without a new actual arrest.

13. An escape is effected in the circumstances stated, upon the principle that legal custody exists only when the custodian has a right under the warrant to possession of the prisoner.

14. Resulting from the rule stated in No. 13, upon an officer leaving his prisoner with a person having no right under the warrant to possess him, an escape is effected, — an actionable breach of official duty.

15. It being the duty of an officer having a person in custody to maintain the same till terminated by due course of law, an agreement with a nonofficial custodian to produce the prisoner into official custody at some later time, is in violation of law.

16. An agreement in plain violation of law, is void and so unenforceable by judicial remedies, regardless of whether it involves a breach of moral obligation.

17. The statutes, secs. 2697 to 2706, Stats. (1898), governing the proceedings in respect to the execution of a warrant to arrest and hold to bail, and sec. 2712, providing that, if the prisoner after having been arrested shall not have given bail or be produced in due course, the officer shall be deemed guilty of an escape and be, himself, liable as bail, in effect prohibits such officer from allowing his prisoner to go from his official custody except as provided by the written law.

18. In case of an action against one or more persons for damages for their having executed a conspiracy to do a wrongful act, the gist of the action is the damage.

19. If there be no legal wrong in what is done by two or more persons acting in concert, in that if the wrong were done by one it would not be actionable, in general, it is not rendered actionable because of having been done by a combination.

20. The foregoing is the rule where there is no substantive wrong in the combination itself.

21. In case of a consummated combination to breach a contract, the wrong, giving rise to the legal right to damages, is the breaking of the agreement, not the combination.

22. For a comprehensive rule:

“An act legal in itself, in that it does not offend against the criminal law, and the injuries are *damnum absque injuria,*regardless of its violation of moral standards, whether such act be the one perpetrated or the means used to that end, generally, if not the subject of a civil action for damages when done by one person, is not if done by many acting in concert.”

*43123. Where an officer, in breach of his duty, leaves his prisoner in nonofficial custody under an agreement that the custodian will produce him, the agreement is illegal, therefore void; hence an executed combination to breach it does not constitute a legitimate foundation for an action for damages for conspiracy.

[Syllabus by Marshall, J.]

*On rehearing:*

24. A statute of another state, although not pleaded, is admissible in evidence to prove a material fact which is pleaded.

25. Under the Michigan statute (sec. 8912, How. Ann. Stats. 1882) the jail limits in that state are the boundaries of the county in which the jail is situated.

26. At common law and under the Michigan statute (sec. 8919, How. Ann. Stats. 1882) a person arrested on mesne process may be permitted to have jail liberties without bond, at the risfc of the officer, and so long as he remains within the jail limits he continues to be in official custody; but if he goes outside of such limits without the consent of the person at whose suit he is under arrest it is an escape.

27. Persons who combine to induce and assist a person to escape and who execute such purpose to the damage of the officer having him in custody, are liable to such officer for the pecuniary loss sustained by him.

Appeals from a judgment of tlie circuit court for Oneida county; A. Hi Reid, Circuit Judge.

*Affirmed as to one defendant; reversed as to the other.*

Action for loss caused by defendants, acting in concert, aiding in the departure of a person alleged to be in plaintiffs lawful custody as sheriff, from tbe latter’s jurisdiction.

One Kitchen, deputy under plaintiff as sheriff of Cheboy-gan county, Michigan, had a warrant, issued in a civil action, for the arrest and holding to bail of one George Schoettle, a minor, living with defendant *Eugene Schoettle,*his father, whose residence was in Ohio, but domiciled *in prcesenti*in said county. The deputy visited such domicile to execute the warrant, but, instead of tailing George into actual custody, he explained to *Mr. Schoettle*the purpose of the visit, exhibited, read the papers to and left copies thereof with him, George *432being present, and accepted *Mr. Schoettle3's*promise to produce tbe boy at tbe county seat tbe next morning in consideration of bis being left at borne in tbe meantime. Tbe purpose of seeking to bold G-eorge to bail was to prevent bis leaving tbe state pending litigation witb bim and enforce payment of any judgment wbicb might be rendered against bim. Tbe officer relied on *Mr. Schoettle’s*promise and did not serve tbe papers other tban as aforesaid. He returned tbat be duly executed tbe writ and defendant escaped from custody. According to tbe promise, *Mr. Schoettle*took George to Cheboygan, tbe county seat, going by tbe train on which tbe officer returned, but did not deliver tbe boy into tbe officer’s actual custody. Upon arriving at Cheboygan tbe officer went directly to bis borne, telling *Mr. Schoettle*to have George at tbe *court*bouse at 9 o’clock a. m. *Mr. Schoettle*then visited a lawyer’s office in company witb Thomas Martin to secure legal advice. While they were there tbe officer came in and after staying a while went away to make inquiries respecting proposed bail. After examining tbe papers and bearing *Mr. Schoettle’s*statement of tbe case and what bad occurred, tbe lawyer advised tbat tbe writ was *void; that*George was *not*in legal custody and was free to leave tbe county if be desired. Eollowing tbat, Martin and defendant Holmes, in aid of *Mr. Schoettle*and George, took tbe latter by team to a railroad station outside Cheboygan county, where George took a train and left tbe state. Such proceedings were thereafter bad in tbe action against George tbat tbe service of papers on bim was adjudged valid and a recovery in due form was bad against bim for $5,000 and costs. After due return of execution thereon unsatisfied, action was commenced against tbe plaintiff and bis bondsmen for damages for a negligent escape and judgment was rendered therein against bim for $2,000 and costs. Tbe judgment was affirmed on appeal and paid. Subsequently, tbe sheriff commenced this action for damages. Tbe cause *433was submitted to a jury resulting in a verdict of wbicb tbe following is an. abridgment:

1. Was tbe officer, under bis writ, authorized to take George Schoettle into bis custody? *A.*Yes.

2. Did tbe officer, when in a position to do so, intend to take George under tbe writ ? *A.*No.

3. If you say Yes to question 2, did tbe officer personally inform George of sucb intention ?

4. If you say No to question 3, was George so informed before tbe conference at tbe law office ? *A.*No.

5. Did George submit to custody by tbe officer? *A.*No.

6. If you say Yes to question 5, did *Holmes*know of sucb submission before aiding George to leave tbe state ?

7. Did *Mr.*Schoettle, upon tbe officer’s visit to bis resi.dence, give sucb officer reasonable ground to believe George-bad submitted to arrest ? *A.*Yes.

8. If you say Yes to question 7, did tbe officer rely tbereon to plaintiff’s injury ? *A.*Yes.

Tbe court changed tbe answer to tbe second question to Yes, answered tbe third in tbe affirmative, changed tbe answer to tbe fifth question, and held that, on tbe undisputed evidence, as to *Mr. Schoettle*at least, George was actually placed under arrest, and that be, in legal effect, submitted thereto. On tbe verdict as so changed judgment was rendered against *Mr.*Schoettle, but as to defendant *Holmes*tbe cause was dismissed with costs.

Defendants’ counsel moved tbe court to strike out questions 7 and 8 and tbe answers thereto and for judgment, wbicb was denied.

Plaintiff’s counsel moved for a new trial as to *Holmes,*in case of denial of judgment against him, because tbe answer to question 6 should not have been made to depend on tbe fifth question being answered. Tbe court, for want of an answer to question 6 or conclusive evidence in favor of plaintiff in respect thereto, ordered judgment dismissing tbe case as to *434*Holmes,*as before stated, and denied- the motion for a new trial.

Both sides appeal.

For tbe plaintiff tbe canse was submitted on tbe brief of *E. D. Minahan.*

For tbe defendants there was a brief by *Miller & Reevs,*and oral argument by *S. S. Miller.*

Tbe following opinion was filed December 5, 1911:

Maeshall, *J.*

It is conceded that, unless George Schoettle was actually placed under arrest wben tbe officer visited bis father’s bouse, and custody, in practical effect, continued down to tbe time be was assisted out of tbe sheriff’s jurisdiction, there was no cause of action against tbe appellant *Eugene Schoettle,*and none against bis codefendant, *Holmés,*unless be knew there was such custody, or ought to have known thereof, wben be aided in tbe departure.

Tbe point made that *Mr. Schoettle*was not liable if be did not suppose bis son-was under legal arrest at tbe time of tbe departure, and that tbe court erred in failing to submit questions on that subject, is not well taken. Tbe real test is, Did *Mr. Schoettle,*in tbe legal sense, commit a wrong to plaintiff iu assisting bis son to leave tbe sheriff’s jurisdiction? If so, be cannot escape responsibility, as to measurable pecuniary loss suffered, because of ignorance or want of intent to injure. Tort cases, in tbe civil aspect, do not depend on intent to- injure, however that element may figure in tbe criminal aspect. Neither, in such cases, can tbe actual damages be mitigated or justified by elements of good faith. That rule, in general, has often been declared and applied here. *Wilson v. Young,*31 Wis. 574; *Fenelon v. Butts,*53 Wis. 344, 10 N. W. 501; *Grace v. Dempsey,*75 Wis. 313, 43 N. W. 1127; *Pendleton v. Beyer,*94 Wis. 31, 68 N. W. 415; *Candrian v. Miller,*98 Wis. 164, 73 N. W. 1004. Tbe rule, in brief, is this: He who is damnified by tbe wrong of another, regardless of that *435other’s motive, is given by the law, and guaranteed, fundamentally, a remedy against such other for at least the actual loss sustained, measured by legal rules. That applies, of course, to such torts as the one claimed to have occurred, giving rise to this case. *Duncan v. Klinefelter,*5 Watts, 141.

The trial court held that there was, in legal effect, an arrest, because the officer was with the boy, had opportunity to take him into actual custody and did the equivalent thereto, since George, of his own motion, or by that of his father, chose to consider himself in official custody in order to avoid being taken from his home and imprisoned; the father agreeing, with his consent, to be responsible for his production on the following day to give bail according to law. Whether, as the trial court held, that amounted to an actual arrest, or whether the officer by having been induced as he was to rely upon *Mr. Schoettle’s*promise, estopped the latter'from subsequently efficiently claiming that George was not placed under arrest, is immaterial as we view the case. Jf it were conceded that the court was right on both propositions, the result would be the same as if the decision were otherwise. So it may be understood, for the case, that, to all intents and purposes, George was placed under arrest at his father’s house and legal custody continued from that time till *Mr. Schoettle*breached his agreement by assisting his son to leave the sheriff’s jurisdiction, unless the arrest ceased to be effective when the officer intrusted performance of his duty to *Mr. Schoettle*and took the risk of the latter not keeping his agreement.

At this point it seems appropriate, though not necessary, as we shall see in the end, to respond to plaintiff’s appeal for condemnation of the trial court’s refusal to grant a new trial as to *Holmes,*or decide the question of his responsible participation in *Mr. Schoettle’s*wrongful conduct, if there were such, in plaintiff’s favor and render a judgment against both defendants accordingly. We perceive no error in the fact that the special verdict was so framed as not to require an answer to *436the question as to the participation, of *Holmes*in the escape, so called, in case of failure to find that there was an arrest under the warrant. All hinged, at the best for plaintiff, on whether, actually or in practical effect, George was placed under arrest at his father’s house. There was ample evidence, tending at least to show, that *Holmes*knew the whole situation when he. aided George,to leave the sheriff’s jurisdiction. There was either a jury question on that subject or not such because of the evidence being conclusive against *Holmes.*If the latter participated in the conduct of *Mr. Bclvoettle,*the two became thereby equally liable. Therefore, to change the answer which was vital to *Mr. Bchoeitle’s*side, so as to find against him and then refuse a new trial as to *Holmes*or render judgment against him because of conclusive proof of his fatal connection with his eodefendant, grounding the refusal upon the very reason which, if good, required a new trial, was illogical. So if the judgment is right as to *Mr. Bchoettle,*it is wrong as to Holmes, requiring a reversal and new trial or judgment as to him. Further we will not go, on this branch of the case, as the whole subject will be superseded by what follows.

The law imposes very important duties upon sheriffs and similar officials and holds them to a very high degree of accountability. When a sheriff has a warrant, as in this case, he is in duty bound to execute it with all reasonable promptness by taking the defendant into official custody under it and holding him securely in such custody till he shall have been released by consent of the plaintiff, or be set at liberty upon giving bail according to the command of the writ and the written law as regards the manner and form thereof, or otherwise by due course of law. If, having reasonable opportunity to make the arrest, the officer fails to do so, he is liable to the plaintiff for the pecuniary loss, at least, sustained thereby. If he executes the warrant in part by taking defendant into custody and then loses such custody by escape, for any cause *437within human control, — escape, voluntary or involuntary on bis part, be is liable to tbe plaintiff tbe same as in case of a failure to execute tbe writ at all. Murfree, Sheriffs, § 199; Crocker, Sheriffs, §§ 600 — 607. Tbe common-law doctrine in this regard is quite inexorable, and has not been relaxed in this state by statute as it has been in some jurisdictions, but has rather been supplemented here by written law. Sec. 2712, Stats. (1898). Without such relaxation tbe sheriff is liable for an escape, prejudicial to private rights, as in this case, within tbe limitations suggested even though there be no moral turpitude in tbe matter and only tbe constructive fault springing from legal responsibility for bis act and the acts of his official assistants. We speak of this to illustrate tbe logic of tbe rule hereafter stated which particularly concerns this case.

True, an officer may, but at bis peril, allow a defendant when under arrest on mesne process, some liberty contingent, however, upon his producing bis prisoner on the return day of the writ or time equivalent thereto, if there be any; but if be permits tbe defendant to go at large for any length of time or illegally relaxes custody to any extent after making tbe arrest, whereby be is unable to produce bis prisoner when required in tbe performance of bis duty upon tbe return day of tbe writ, liability to tbe plaintiff for loss caused thereby arises and can be discharged only by payment of his damage.

A sheriff may entrust tbe execution of writs and tbe custody of persons taken thereunder to official assistants, being responsible for their conduct, as if it were his own. In case of their breaching official duty to his damage which be is compelled to meet, be has a right of action over against them for indemnity. This rule obviously goes no further than such assistants as are possessed of legal authority to arrest tbe defendant, or bold him by authority of the officer after initiation of legal custody. It does not permit of tbe officer entrusting custody of tbe prisoner to any one having no official right to restrain him, as a mere matter of convenience or indulgence.

*438It follows from tbe foregoing, tbat there can be no such thing as an escape, rendering a sheriff liable for an injury to private rights, as in this case, unless there was legal custody under the warrant at the time the departure occurred. That is too elementary to require support by authorities.

Now, it is not and could not be claimed there was any escape in this case in which the defendants, or either of them, wrongfully participated, from a legal standpoint, unless it occurred at the time George departed from the sheriff’s jurisdiction. If he was not then in official custody, and had not been since he was voluntarily left with his father on the preceding day, then the escape, if any occurred, happened at the latter time.

Erom the foregoing it must follow, on principle, that a sheriff has no authority to leave his prisoner, as in this case, to be produced by a person having no official status and so no official right to restrain him. The contrary would be out of all harmony with the dignity and responsibility of the office of sheriff. It would open the way to lax performance of official duties and inestimable mischief, to the prejudice of private and public rights. No warrant is found in the history of the matter as found in the books for an officer to leave his prisoner with a private person under a promise of the latter to continue the custody, and be held excusable for doing so, or such person being held responsible to him upon such promise. The industry of counsel, if it were turned to the matter, failed to result in citing to our attention any precedent or principle sanctioning or enforcing such a promise. On the contrary, well considered decisions exist holding that such promises are void for want of consideration and are wholly unenforceable as contrary to public policy, being in violation of the official duty of the sheriff to take and officially hold, or let to bail, or release the defendant only according to the command of the writ.

*439We may well say, in passing, tbat tbe officer bere did not even clotbe *Mr. Schoettle*witb tbe semblance of authority, by leaving tbe writ witb bim. Only copies were so left and tbat for tbe purpose of service, not for tbe purpose of conferring authority to restrain George as one under arrest. So there was a clear case, within principle and authority, of allowing a prisoner to go at large after having once been taken into custody under a writ, — go at large contrary to tbe command of the writ under which be was arrested.

Generally, it will be found stated, tbat any suspension of actual official custody once existing, as in this case, effects an escape. 11 Am. & Eng. Ency. of Law (2d ed.) 265. Tbe officer, to perform bis duty in such a case, must keep bis prisoner in secure custody, not necessarily lock bim up, but under official control. Murfree, Sheriffs, § 200. Leaving tbe prisoner in tbe custody of another, not an officer, as indicated, effects an escape necessarily, because of tbe custodian having no official authority to bold tbe prisoner. Crocker, Sheriffs, § 601; *Palmer v.*Hatch, 9 Johns. 329; *Browning’s Ex'x v. Rittenhouse,*40 N. J. Law, 230; *Hawkins v. Plomer,*2 W. Blackst. 1048; *Benton v. Sutton,*1 Bos. & Pul. 24; *Olmstead v.*Raymond, 6 Johns. 62.

Decisions of recent date relating to tbe subject are not numerous, rather indicating, when taken in connection witb textbook authorities, tbat tbe stated rule long since became so elementary as to preclude controversies in respect to tbe matter reaching courts of last resort.

In connection witb what has been said, it seems well to give caution against tbe inadvertent statement in Smith, Sheriffs, etc., at page 565, which might lead one astray. This language is there used: “Arresting one on civil process and leaving bim in custody of one not an officer, is not an escape.” Possibly tbat text-book statement was brought to tbe attention of the court below and affected tbe result, as it does not seem to have occurred tbat legal custody was suspended by tbe offi*440cer, because of bis having left bis prisoner with *Mr. Schoettle.*Tbe quoted language is out of harmony with its context. It is based on two New York decisions which we have cited. They are directly contrary thereto. The word “not” evidently was interpolated into the author’s writing in the process of producing his work after the copy for the printer left his hands. In the first case the author referred to the officer, after making the arrest, through kindness and for mutual convenience, left his prisoner in the custody of the latter’s two brothers. The court treated the matter very briefly, thus: “This was leaving the prisoner at large and was clearly an escape; for the two brothers of the prisoner had no authority, after the deputy had left them, to detain the prisoner. ...”

In *Benton v. Sutton, supra,*a leading English case often cited, the officer after making the arrest left his prisoner in custody, for a time, of a follower who had no official authority. The court by Eyee, C. J., said:

> “The custody of the follower, after the writ once executed, amounted to nothing; he could have no power to detain the prisoner if he had chosen to escape, and the warrant would have been no justification to him, if any mischief had happened ; which reduces the case to this point, that the prisoner was found absolutely at large. . . . Cases may be put where, if the officer attempted to justify any length of indulgence, under color of the prisoner being always in his presence, the court would say that it was an escape.”

Bullee, J., added:

> “I think that no distinction can be made between such a case as this, and one which originates in more laudable motives. Wherever the prisoner in execution is in a different custody from that which is likely to enforce payment of the debt, it is an escape.”

All the judges concurred that immediately upon the prisoner being, as matter of indulgence, left with the person not an officer, — who could have the protection of the writ in offi-*441daily restraining Rim, lie was no longer in legal custody, but, in the eye of the law, had escaped.

It follows, logically, from the foregoing, — upon the elementary principle that an agreement in plain violation of law, is unenforceable, and the time-honored doctrine that a sheriff holding a writ, as in this case, is in duty bound to execute it with strict fidelity to its commands; and that, after taking the prisoner, to place him under nonofficial control or allow him to go at large otherwise, upon his own promise or the assurance of another that he will appear at a later time, other than such assurance as is prescribed by law; any agreement whereby the officer entrusts custody of his prisoner to another who has not authority under protection of the writ to restrain him, accomplishes a legal escape, — that the agreement relied on was and is absolutely void. The following in addition to the authorities heretofore cited so declare the law and illustrate its application: *Wheeler v. Bailey,*13 Johns. 365; *Winter v. Kinney,*1 N. Y. 365; *Cook v. Freudenthal,*80 N. Y. 202; *Richardson v. Crandall,*48 N. Y. 348; *Decker v.*Judson, 16 N. Y. 439.

In Eew York, it is true, a statute existed declaring agreements, other than such as are expressly authorized by law, taken by an officer in his official capacity to enable him to allow a person in his custody under arrest to go at liberty, void. But such statute was modeled after an ancient English statute and is, in the main, a declaration of a common-law rule.

In *Winter v. Kinney, supra,*it was said, in effect, that any agreement made by an officer inconsistent with his official duty whereby injury may happen to the plaintiff in the case in which the defendant is under arrest for the security of the plaintiff, is void. Many cases are referred to in the citations of an officer taking a promise in some form not provided by statute, to enable him to allow the defendant more or less liberty inconsistent with his being under actual restraint as a *442prisoner; tbe act in many, and perhaps most cases, as here, being out of kindness to the defendant and without thought of injuring the plaintiff or that he would be injured. All such were condemned as in breach of official duty.

In *Browning’s Ex’x v.*Rittenhonse, 40 N. J. Law, 230, the court aptly remarked:

> “There is little sentimentalism in the law relating to debtors in execution; and the rule is very stringent that the sheriff shall take the defendant and safely keep him so that he may have him in custody, ready to satisfy the plaintiff, though in arrests upon mesne process the officer discharges his duty if he produces the defendant on the day of the return.”

We must assume, on the record, that the law of Michigan is the same as the law of this state respecting a sheriff’s duty in such circumstances as those under consideration, — that is, to permit the prisoner to be at liberty after having been placed under arrest only upon his giving bail as indicated in the warrant, or the plaintiff consenting thereto, or the defendant being discharged or released in due course of law. The warrant in such a case fixes the amount of the bail. The statutes direct the manner thereof. Sec. 2691, Stats. (1898). They also provide that if the prisoner, after having been arrested, be not produced in due course, or have not given security in some one of the ways pointed out, the sheriff shall be liable, himself, as bail, upon the ground of having been guilty of permitting an escape. Sec. 2112, Stats. (1898). That is equivalent to a statutory prohibition of allowing a prisoner indulgence inconsistent with official duty and to a declaration that any such allowance, under an agreement, as in this case, is an escape and the agreement void.

How then can we escape the conclusion that the officer in taking, for the time being, the personal promise of *Mr. Schoet-tle*to produce George plainly violated the law, common and statute, regarding his official duty ? The violation was of a *443kind, regardless of good intention, deemed from time immemorial, as we Rave seen, of a very dangerous prejudicial character, Sound public policy condemns such lapses, no matter if the sheriff be actuated by the best of motives. Good motives do not, justify or excuse violation by a sheriff of his duty to as fully as practicable execute the writ placed in his hands for that purpose. A contract in breach of such duty is, logically, void and unenforceable.

We must hold that George Schoettle ceased to be plaintiff’s prisoner before the time when he was assisted to leave the state of Michigan. There was a voluntary escape, in legal effect, the preceding day. *Mr. Schoettle*was under no legal obligation to produce his son and deliver him according to promise, however significant may appear his moral obligation to have done so. So George, not being in the sheriff’s custody or under arrest in any sense on the day of the departure, committed no legal wrong to plaintiff in going away, neither did the defendants in assisting him in the matter.

The mere fact, if there be such, of there having been concert between the defendants did not create a liability for damages. In a civil action against two or more persons, charged with having conspired together to do a wrongful act to the damage of another and executed the agreement in that regard, the gist of the action is the damage, not the conspiracy. The latter is material only to fix joint liability when otherwise perhaps some of the parties charged would not be liable at all. If there be no legal wrong in what is done by such a combination then there is no legal, that is recoverable, damage. Such damages are only incident to a violation of some legal right. If the agreement between *Mr. Schoettle*and the deputy sheriff were valid, then the agreement between the defendants to breach it, and concurrence in carrying that out, would fall within the rule rendering concert in doing an unlawful act actionable civilly in case of the purpose of the agreement be*444ing carried out to tbe damage of another. Tbe unlawful act, primarily, would be tbe breaking of tbe valid contract, not tbe concerting together to do it.

This court pointed out tbe danger of confusing conspiracy in its criminal aspect with conspiracy having no reference to tbe commission of a crime or not being in itself a substantive criminal offense, in *Martens v. Reilly,*109 Wis. 464, 84 N. W. 840; *State ex rel. Durner v. Huegin,*110 Wis. 189, 254, 85 N. W. 1046; *Randall v. Lonstorf,*126 Wis. 147, 105 N. W. 663; *White v. White,*132 Wis. 121, 128, 111 N. W. 1116; and *Jones v. Monson,*137 Wis. 478, 119 N. W. 179. As said in tbe latter case, there is no such thing as a civil action for conspiracy, but there is a well known right of action for damages for a wrong committed by many persons concerting together to do an unlawful act, tbe joint liability springing from tbe concert without, necessarily, all persons charged having participated in the overt acts. In *Martens v. Reilly, supra,*the rule on the subject, latterly several times approved, respecting the matter under discussion was phrased thus:

> “An act legal in itself, in that it does not offend against the criminal law and the injuries are *damnum absqioe injuria,*regardless of its violation of moral standards, whether such act be the one perpetrated or the means used to that end, generally, if not the subject of a civil action for damages when done by one person, is not if done by many acting in concert.”

We do not overlook the element of parental authority which existed in this case. That afforded capacity, to some extent, for *Mr. Schoettle*to keep his promise made to the officer, but under any one of many circumstances which might have arisen, none whatever. Parental authority gave *Mr. Schoettle*no legal right whatever to imprison his son as one liable to restraint as a violator of law, or to deprive him of his liberty for the purpose of turning him over to the officer. Regardless of such authority, the escape was complete and liability. *445of tbe officer created when George was- abandoned to nonofficial custody, leaving no basis for liability for wbat occurred on tbe following day. Had tbe writ been left with *Mr. Schoettle*it would not bave furnished bim any justification for resisting tbe taking of tbe boy on another writ held by some other officer or any other taking of George from bis custody. All tbe authority incident to official control was due from tbe officer to tbe plaintiff in tbe action in which tbe writ issued. So far as be could, be violated bis duty in that regard, — contracted away, innocently it is true, tbe custody which duty required bim to retain, and then sought to recoup tbe damages be brought upon himself, through an action upon tbe void agreement. We may well say, in passing, that while be cannot succeed in doing that, tbe result reflects no credit on *Mr. Schoettle.*

*B. D.*Minahan, for the plaintiff.

For the defendant there was a brief by *Miller &*Beevs, and oral argument by *S. S. Miller.*

Tbe foregoing leaves tbe judgment without any support in tbe law or tbe evidence. Tbe precise ground of our decision does not seem to bave been presented below or to bave been in tbe mind of counsel for appellant here, though the exceptions saved are broad enough to cover it so far as exceptions were necessary therefor. The judgment below should have gone in tbe defendants’ favor on tbe motion therefor after verdict.

*By the Court.*— On plaintiff’s appeal the judgment as to defendant *Holmes*is affirmed. On the appeal of defendant *Schoettle*the judgment is reversed, and the cause remanded with directions to enter judgment dismissing the action as to him with costs.

SiebbcKER, KeewiN, and B'abNes, JJ., dissented.

A motion by plaintiff for a rehearing was granted on January 30, 1912, and the cause was reargued on April 6, 1912.

*446The following opinion was filed April 23, 1912:

Maeshall, J.

If George Schoettle was not at large, — had not already escaped from custody of the .officer, when he was assisted by *Eugene Schoettle*and *Edmund Holmes*to leave the state, then the logic of the first result here requires a different one because of change of premises.

By common-law rules a person once arrested by mesne process, so long as kept within jail limits, is in official custody, and upon being permitted to go outside thereof without consent of the person at whose suit he should be in custody, there is a voluntary escape. In general, a person arrested on mesne process may be permitted by the officer at his own risk to have jail liberties, or he may take a bond to indemnify against risk in permitting the indulgence. In either case, there is no escape. Such, is the common-law rule, — Crocker, Sheriffs, § 692; 11 Am. & Eng. Ency. of Law (2d ed.) 269, — and it has been incorporated into most Codes in connection with a variation of the common rule as to what constitutes jail limits. That is true as to our statute. Secs. 4321-4323, Stats. (1898).

So it is important in a case of this sort, to determine the state of the law in the particular jurisdiction where the cause of action arose as regards what constitutes jail limits. Commonly it is the prison bounds. In the absence of any statute that would be the test. In case of a suit prosecuted, as in this instance, and no proof of a statute fixing jail limits in the neighboring state, the presumption would be that they are the same as here, — the sides of a square, the center of each side being one mile from the jail.

It follows that, under the common law or the statutes of this state, George Schoettle, after having been arrested, was permitted to be outside of jail liberties and from under official custody. That seemed fatal to plaintiff’s cause of action *447on the first hearing. The aspect would have been the reverse had it been understood that under the law of Michigan George Schoettle was within jail liberties till he departed from the county wherein he was arrested.

The vital point of the case does not appear to have been fully appreciated when the cause was first presented here. The statute of Michigan, which governs the matter, was not referred to by either side, in the briefs or oral arguments. The record of the trial did not clearly disclose introduction of the statute. Looking through that part of the bill of exceptions where one would expect to find evidence of its introduction, it is not clearly there. It appears, *in*extenso, with a copy of all statutes introduced at the end of the bill. Counsel now seem to agree that it was introduced in evidence. The main contention of counsel for defendants is that it was not competent because not pleaded. It is considered that there is no merit in that. It was mere matter of evidence to prove a fact essential to the cause of action. The fact was pleaded. Of course, it was not necessary to plead the evidence to prove the fact.

Why the Michigan statute which now seems so vital and would certainly have seemed so before had it been brought to our attention, was not mentioned in the briefs and made prominent on the argument, is not perceived. Under the circumstances, particularly the state of the record, it seems quite natural that it escaped our attention.

Sec. 8912, How. Ann. Stats. Mich. 1882, fixes the jail limits in that state at the boundaries of the county within which the jail is situated and provides that a person under arrest, as in this case, shall be entitled to the liberties of the jail limits of -Such county, upon executing a bond to the sheriff, as indicated *;*and sec. 8919 of such statutes provides that

> “The going at large of any prisoner who shall have executed such bond, or of any prisoner who would be entitled to the *448liberties of any jail upon executing sucb bond, witbin tbe jail limits of tbe county in wbicb be shall be in custody, shall not be deemed an escape of sucb prisoner, but in case any sucb prisoner shall go at large without tbe jail limits of sucb county, without tbe assent of tbe party at whose suit sucb prisoner shall be in custody, tbe same shall be deemed an escape and forfeiture of tbe bond so executed, and tbe sheriff in whose custody sucb prisoner shall bare been, shall bare, tbe same authority to pursue and retake sucb prisoner, as if sucb escape bad been made from tbe jail.”

Tbe effect of tbe foregoing is unmistakable. It, in legal effect, extended tbe prison bounds so as to make them coincide with tbe bounds of the county witbin wbicb it is situated. So long as a prisoner remains witbin tbe county be is in tbe legal custody of tbe sheriff, tbe same as if confined to tbe bounds of tbe jail under tbe rules of tbe common law. Eor one so circumstanced to leave tbe county without tbe assent of tbe person at whose suit be is under arrest, is just as much a wrong as if be broke and escaped from jail limits as that term was used in ancient law.

It follows that, when George Scboettle broke bis parole, so to speak, by departing from bis county, be committed a wrong to tbe damage of tbe plaintiff, *Gebhardi.*Tbe damage drew to tbe cause of action for tbe wrong all persons who participated in its commission. That element, tbe combination to induce and aid tbe prisoner to escape from tbe officer’s constructive custody and tbe execution of tbe purpose of tbe combine, under tbe rules referred to in tbe former opinion, made a good cause of action in *Gebhwdt’s*favor against tbe co-conspirator for damages.

Thus tbe law of tbe case, as before decided, is so varied by tbe statutes of tbe state of Michigan, where tbe cause of action arose, that tbe judgment against *Eugene Schoettle*is right and must be affirmed; that the judgment as to defendant *Holmes*must be reversed, and tbe cause remanded with direc*449tions to amend tbe judgment in plaintiff’s favor so as to be against botb defendants.

*By the Court.*— So ordered. Costs in tbis court to go in plaintiff’s favor on botb appeals.

All Justices concurred.