Downing v. Commonwealth

1. The prosecutrix for fornication and bastardy, cannot maintain an action for the escape of the party accused, against an officer Who took him in custody under a warrant. Booz v. Engarman, 6 Harris 263, re-affirmed. 2. The case of Lantz v. Lutz, 8 Barr 405, is no authority to the contrary.

Error to the Common Pleas of Lancaster county. This was an action of debt in the name of the Commonwealth, for the use of Sarah J. Wright, v. J. S. Downing and J. Russell, on the official bond of Downing, as constable. Plea, covenants performed with leave, &c. Sarah J. Wright had made complaint against Rockey, for fornication and bastardy. The warrant was delivered to Downing for execution; he arrested Rockey, but he was permitted to escape, and this action was brought to recover damages for permitting the escape. On the trial it was contended on the part, of the defendants, that the arrest being on mesne process; case was the proper form of action: 2 Chitty’s Pl. 739; 4 Black. Com. 130; 1 Chitty Crim. Law 59; McKinney’s Am. M. 226; 3 Bacon 419. On the part of the defendant it was offered to prove by parol testimony, that Rockey was insolvent at the time of his arrest, and has since been so. Also that the plaintiff and Rockey compromised the matter by an agreement to become married. This evidence was overruled. The parties, however, never became married. Long, J., charged that the form of action was proper, and that damages could be recovered; not however for the maintenance of the child for seven years, as it might die, but such damage as the plaintiff in interest had sustained. January 28, 1852, verdict for $1000, the amount of the bond, and damages assessed for the plaintiff at $137, with six cents costs. It was assigned for error, that the Court erred in instructing the jury that the action could be sustained. 2. In not allowing the defendant to prove the insolvency of Rockey. 3. In not allowing the defendant to prove that the prosecutrix and Rockey had compromised the matter by an agreement to become married; and that the prosecution under which Rockey was arrested, was in that manner agreed to be withdrawn. 4. In charging that in finding for the plaintiff the jury might find the amount of the bond, $1000, and then assess the damages which the plaintiff had sustained, it being alleged in the assignment that no damages were proven. 5. In taking the question of escape from the jury. 6. In not allowing the defendants to prove that Sarah J. Wright refused to appear against Rockey to prosecute her complaint, when he was under arrest.