89 Ind. 68 | Ind. | 1882
The complaint in this case is upon a constable’s bond, executed by William Lakin as principal and the other appellants as sureties. The breach alleged is that Lakin wilfully suffered the escape of one Stephen H. Newby, who had been committed to his custody by a justice of the peace on a charge of bastardy preferred by the relator.
Proceedings under the statute regulating prosecutions in bastardy cases can not be regarded as ordinary civil actions.
Our statute means that a defendant in a bastardy prosecution, found guilty by the justice on a preliminary examination, shall either be kept in the custody of the law or give bond for his appearance at court. It means, too, that the constable, into whose custody the defendant is committed, shall safely keep him and make delivery to the proper sheriff. The plain duty of the constable is to use diligence azzd care to pz’event the escape of the defendant, and if he violates this duty he is liable on his bond. It is useless to refer to old technical rules, for the bonds of constables in our State are executed to secure the performance of duties enjoined by our laws. If we find a plain statutory duty enjoined, and find that it has been violated, we zzeed look no further; foz’, these things appearing, the cause of action, in favor of the party to whom the duty is owing, is complete.
It is clear, from what has been said, that the constable was guilty of a breach of duty, and that he owed this duty to the plaintiff in this cause, and, this being true, there is an undoubted right of action.
It was the duty of the constable to obey the process issued
There is no resemblance between a case where a magistrate upon a hearing orders a defendant into custody in accordance with express statutory provisions, and cases where the arrest is made without a hearing and upon a mere ex parte affidavit. Our statute intends that the accused shall not be imprisoned until he has had a hearing, but that if, upon a hearing, judgment goes against him, he shall do one of two things, go to jail or give bond. It is not part of the constable’s business to challenge the correctness of the magistrate’s decision; his business is to execute the process issued to him as the law directs.
A constable, who takes a defendant into custody on a warrant issued for his arrest, is bound to use proper diligence to prevent the escape of the accused. It is the officer’s duty to guard the defendant during the hearing and keep him until the order of commitment, and then to execute that order as the law commands. A constable does not discharge his duty by bringing the accused before the magistrate, and then giving no further supervision to his safe-keeping. It would hardly be contended that a sheriff could arrest a criminal, place him in the dock, and then leave him unguarded. Yet the principle which governs such a case is precisely the same as that which rules this. A constable serving a warrant is charged with the care and custody of the person arrested during the proceedings in the magistrate’s court; he is the ministerial officer,
The appellants pleaded in mitigation of damages, that Yewby, the defendant in the bastardy prosecution, was wholly insolvent, and they here insist that the theory upon which the answer proceeds is the correct one. It is well settled that where there is a judgment in. a prosecution for bastardy in the circuit court an officer suffering an escape can not plead -the defendant’s insolvency. State, ex rel., v. Hamilton, 33 Ind. 502; State, ex rel., v. Mullen, 50 Ind. 598; Smith v. Com., 59 Pa. St. 320; Karch v. Com., 3 Pa. St. 269; Snyder v. Com., 1 Pa. 94. But in the present case there was no final judgment, until after the escape, fixing the amount of the defendant’s liability, and the cases cited can not be said to be decisive of the question. We think, however, that the reasoning in these eases leads to the conclusion that where the officer wilfully suffers an escape after the preliminary hearing, he is bound to the extent of the sum fixed by the judgment on the final trial, and can not plead the defendant’s insolvency in defence. In State, ex rel., v. Hamilton, supra, it was said: “ To permit a sheriff, when he is sued for permitting the escape of a person confined in jail for a failure to pay or replevy a judgment in bastardy, to plead the insolvency of the person that he had permitted to escape, would be to deprive the unfortunate mother of such a child of a substantial remedy, provided by laws of this State for the enforcement of her judgment, and to encourage the repetition of such offences against good morals, the peace and happiness of families, and the best interests of society.” This is equally true of such a case as this. It would practically nullify the provision of the statute prescribing imprisonment, if a constable were allowed to
Prima facie, at least, the judgment rendered on the final trial of the bastardy prosecution is the measure of damages. The proximate result of the constable’s wilful wrong is the deprivation of the means of coercing payment of the judgment'to which the tribunal appointed by law to determine the matter adjudges the plaintiff entitled. No other standard can be set up without making the provision of the statute concerning imprisonment inoperative and involving the whole subject in doubt and obscurity. We do not affirm that the judgment is conclusive — we need not go that far in.
Judgment affirmed.