The question which meets us at the outset is whether a defendant in a bastardy proceeding, who has been found guilty, and is in custody of the sheriff for noncompliance with the judgment against him. therein, is entitled to jail liberties. If he is not, the circuit court erred in his charge to the jury that the plaintiff was so entitled, and that his close imprisonment by the sheriff — the defendant —■ was uníawful. In such case a new trial was properly granted, and cannot be disturbed.
Sec. 4322, B. S., reads as follows: “Every person who shall be in the custody of the sheriff of any county, by virtue of an order of arrest, or writ of ne exeat, or surrender by his bail upon an order of arrest, execution (except when issued in a civil action for the recovery of a forfeiture or penalty), or attachment in proceedings for contempts, not criminal, issued for nonpayment of costs, or of any sum of money ordered to be paid in a civil action, shall be entitled to be admitted to such jail liberties upon executing the bond prescribed in the next section.”
An analysis of this section readily shows'its true meaning and scope. To entitle any person to jail liberties, he must be in custody of the sheriff by virtue of (1) an order of arrest, or surrender by his bail upon such an order; or (2) a writ of ne exeat/ or (3) an execution in a civil action other *311than for the recovery of a forfeiture or penalty; or (4) an attachment for nonpayment of costs, in a proceeding for contempt not criminal; or (5) an attachment for the nonpayment of any sum of money ordered to be paid in a civil action.
If the plaintiff was entitled to jail liberties-, it must be so because the case comes within the above classes 4 and 5. Hone of the others can possibly be applicable, because the process under which he was in custody was neither an order of arrest, a ne exeat, a surrender by bail, nor an execution, but an. attachment.
There are two conclusive reasons why the statute has no application in a bastardy proceeding. The first reason is that it is not a civil action in the sense in which that term is employed in sec. 4322, but is a special proceeding, as was held in State v. Mushied, 12 Wis. 561; State v. Jager,19 Wis. 235; Baker v. State, 65 Wis. 50; Bookhout v. State, 66 Wis. 415.
But were the proceeding a civil action, another reason why the plaintiff was not entitled to jail liberties, under sec. 4322, is found in the fact that the judgment required him to do something more than to pay money. It also required him to give the bond called for by sec. 1536, and he was attached and in custody for non-compliance with that requirement, as well as for non-payment of money. Had he paid the costs, and all sums then due on the judgment, he was still bound to give the bond to secure the payment of such sums as would become due thereafter. Manifestly, sec. 4322 provides for no such case.
We conclude that the court erred in his instruction to the jury that the plaintiff was entitled to jail liberties, and, hence, that a new trial was properly granted for that reason. Other questions were argued by counsel, but it is unnecessary to determine them.
By the Court.— Order affirmed.