
    Claiborne Steele vs. James Shirley.
    A writ of error lies from the decision of a circuit judge, sitting on the trial of a writ of habeas corpus for slaves alleged to have been taken “ out of the possession of the master or owner by force, stratagem or fraud ; ” but an appeal does not lie.
    The writ of habeas corpus for slaves, at the instance of the owner, is allowed by the statute, when the slaves are “ taken out of the possession of the master or owner by force, stratagem or fraud, and unlawfully detained; ” if, therefore, it appear on the trial of such a writ, that the slaves were not so taken by either force, stratagem or fraud, the judge will have no jurisdiction of the case, and the petition must be dismissed.
    S. sued out a writ of habeas corpus against C. S., alleging that the latter had taken certain slaves of the former out of his possession, he being the owner by force; on the trial of the writ it appeared that C. S., as sheriff, had taken the slaves under the fiat of the chancellor and process from the chancery court in the suit of M. against S., and held them in custody by virtue thereof, until the jail fees amounted to $ 140 ; when S. presented him an order from the chancellor for their release, C. S. refused to deliver them until the fees ,due were paid him; upon which S. sued out the writ of habeas corpus: Held, that the facts did not justify the issuance of the writ; the sheriff took the slaves in obedience to the order of a court of competent jurisdiction, and did not detain them unlawfully when he held them to enforce the payment of fees allowed him by law.
    It seems that a sheriff has by law a lien upon slaves committed to his jail, for their jail fees, and has a right to retain the slaves for their payment; but if there are several slaves so committed, upon the order for their release, he should only retain a sufficient number, of value to pay the fees.
    On the 10th of August, 1847, the Hon. George Coalter, judge of the third judicial district, granted a writ of habeas corpus on the petition of James Shirley, requiring Claiborne Steele to bring seven slaves before the judge, which the petitioner alleged Steele forcibly took out of his possession and unlawfully detained. The writ was returnable on the next day at the court-house of Warren county, and was directed to and executed by the coroner.
    
      At the time and place appointed Steele appeared and answered, that the slaves named in the petition were enumerated in a writ of injunction and seizure from the superior court of chancery, in the case of R. L. Mathews complainant, and James Shirley defendant, and the special direction on the writ was, that the sheriff of Warren county should keep these slaves until the defendant, or in his default, the complainant, should give bond for their safe keeping and delivery, to abide the further order of the court of chancery in the cause. That as sheriff of Warren county he seized these seven negroes and committed them to his jail, where they remained until the 15th day of July, 1847, without any bond being given or claimed by either complainant or defendant, during which time jail fees accrued to the amount of one hundred and forty dollars. On the 15th day of July, 1847, Shirley presented to him an order from the chancery court, which authorized Shirley to demand the negroes, and they would have been delivered to him upon the payment of the jail fees which had thus accrued, and for the payment of which respondent alleged the negroes were bound. He then held the negroes only for the purpose of compelling the payment of the fees due him, in all $205.75, for the keeping the negroes. The other fees due to him as sheriff he did not claim until the end of the chancery suit.
    The facts stated in this answer were admitted to be true. The order of restitution by Steele to Shirley, of the slaves seized by him, by virtue of the process in the case in chancery of Mathews v. Shirley, was read in evidence.
    The bill in chancery in the case of Mathews v. Shirley was also read; the substance of it was as follows : that James Shirley and his wife and children and others had fried a bill, on the chancery side of the circuit court of the United States for the southern district of Mississippi, against John Martin and others, and had obtained from the judge of that court a writ of injunction, restraining the defendants therein from proceeding to sell certain slaves named, (including the seven in controversy in this case,) under execution in their favor against James Shirley; the bill claiming the slaves as the property of the children of Shirley. This fiat was granted on condition that James Shirley should execute a bond in the penalty of five thousand dollars, with surety conditioned that the complainants should have the slaves forthcoming, to answer and abide any order or decree of that court in the cause. Mathews as surety for Shirley executed this bond with him and others, on Shirley’s solemn assurance that the slaves should be kept to abide such decree. On the execution of this bond the slaves were restored to Shirley’s possession in Tallahatchie county, where Shirley had had them at work on a plantation in that county. Since then, Shirley had abandoned his plantation and removed to Vicksburg, in Warren county, with his family, and was about also to move these slaves there, with the view of removing them from the state. That such Mathews believed was the intention of Shirley, who, in case his injunction against Martin and others was dissolved, would as Mathews feared and believed, remove the slaves and leave Mathews to pay the bond. That Shirley was insolvent. The bill prayed for injunction against Shirley’s removal of the slaves, and that unless he would give security that he would not do so, the sheriff of Warren county might seize them, &c. The chancellor granted a fiat in accordance with the prayer of the bill.
    It was then admitted, that on the 15th of July Shirley had demanded the slaves of Steele, and the latter refused to deliver them up unless his jail fees were paid him.
    Hereupon Steele objected to the jurisdiction of the judge ; the objection was overruled and exceptions taken. The judge then ordered Steele to deliver the slaves to Shirley; Steele again excepted and appealed. The appeal was prosecuted and dismissed (see 9 S. & M. 382,) and this writ of error afterwards allowed.
    
      Guión and Baine, F. Anderson and W. C. Sniedes, argued the case for plaintiff in error.
    They insisted,
    I. Under the statute, Hutch. Miss. Code, 1001, § 9, writs of error in cases of this sort are allowable. See Steele v. Shirley, 9 S. & M. 382.
    
      II. To entitle the applicant to this writ, the slaves must be taken or seduced out of his possession by force, stratagem or fraud, and be unlawfully detained in the defendant’s possession, (Hutch. Miss. Code, 1002, § 19.)
    1. In this case the slaves were neither taken nor seduced from petitioner’s possession by force, stratagem nor fraud. They were taken by the sheriff as such, under a fiat of the chancellor, on a bill regularly filed upon a subject over which by the constitution and laws he had full jurisdiction; whether providently or improvidently granted, the circuit judge had no right to determine ; nor has this court in this collateral way. Until reversed, the trial of the chancellor was legal, proper and conclusive; the sheriff was bound to obey it; and in obedience to it he took the slaves. He took them then by authority of law; and obtained their possession in neither of the modes pointed out by the statute.
    2. Nor were these slaves unlawfully detained, in such a manner that the circuit judge could take notice of it. If the sheriff was not entitled to his fees, the remedy of the petitioner was by motion to the chancellor. The chancery court had taken jurisdiction of the subject-matter; and the circuit judge could not interfere. The sheriff held the slaves legally, and he therefore detained them legally; non constat, that the chancellor had not reversed his order allowing the possession to petitioner, or had not required him to pay jail fees. The whole record was not before the circuit judge. Where one court has taken jurisdiction of a subject-matter within its jurisdiction, until a final decree, no other court can inquire collaterally into the exercise of that jurisdiction. Were the exercise of the power used in this case by the circuit judge sustained, all chancery suits for the trial of the right of possession to slaves, would be tried by habeas corpus. Hutch. Miss. Code, 762, § 50.
    • 3. But the sheriff was entitled to his jail fees. Hutch. Miss. Code, 487, 488, 489. He is entitled to receive his. pay for victualling negroes taken under attachment or execution; there is no limitation on this right. It is absolute; it does not depend on the order of court; it is not part of the costs for which the sheriff is entitled, from that party from whom they are adjudged. He is absolutely, and under all contingencies, entitled to his pay; and the negroes are necessarily liable to him for them. He who demands their possession must pay the fees. He has a lien on the slaves for their feeding. He is a bailee, like an innkeeper, livery stable-keeper, &c., and before the owner can recover the article he must pay charges, and look to the ultimate decree of the chancellor for his reimbursement. A contrary decision would subject unreasonably a sheriff to great risk of loss; would subject the slaves to the chances -of rigorous treatment, for the sheriff might not be able to advance the money for their support, and they might suffer in consequence; might in some cases ruin a sheriff, who had been required to take a large number of slaves into custody, and hold them for a long time.
    Shirley, in proper person, J. J. Shirley and Enloe, for defendant in error,
    Cited Walk. Rep. 154; Acts of 1846, p. 210; of 1844, p. 120; 4'S. &M. 770; Dunlap’s Pr. 1120; H. & H. 538; Const. Art. IT. § 4; 2 Tidd’s Pr. 1188.
   Mr. Justice Clayton

delivered the opinion of the court.

This case was formerly brought to this court by an appeal; it was then dismissed, because the court held, that there is no mode of bringing the judgment of a judge on a writ of habeas corpus into this court, but by writ of error. Steele v. Shirley, 9 S. & M. 386. It is now brought up by writ of error, and it is insisted by the defendant in error, that there is no mode provided by law for the revision in this court of such cases, and that the decision of the judge below is final and conclusive. We held the reverse in this very case, and directed this very writ to issue. We shall not now hold differently. In Hardy v. Smith, 3 S. & M. 316, jurisdiction of a similar writ was entertained without objection. See also 5 S. & M. 345.

To proceed to the consideration of the merits. In his return to the writ of habeas corpus, Steele stated that he was the sheriff of Warren county, and that the negroes in question were taken into custody and committed to jail by him as sheriff, by virtue of a fiat from the chancellor of the state, directing him to take said slaves and keep them until the defendant in a certain suit of R. L. Mathews v. James Shirley, should give bond to have said slaves forthcoming to abide the further order of the superior court of chancery. That he detained said slaves in custody until the jail fees amounted to $140, when the said Shirley produced an order from the said superior court of chancery, directing the release of said slaves. Steele states that he offered to deliver up said slaves, upon payment of the fees then due; that Shirley refused to pay said fees, and that he detained them, by virtue of his lien upon them, for the expenses thus incurred. He alleges his willingness to surrender them, upon the payment of what Avas due at the time of the said return, to Avit, $205.75. The circuit judge directed the delivery of fhe-slaves by Shirley.

The chancellor had jurisdiction of the case in which he made the fiat in question. It Avas the duty of the sheriff to obey his mandate. The question then arises, Avhether, in the language of the statute, these slaves “were taken out of the possession of the master or owner by force, stratagem or fraud, and unlawfully detained.” We think that the officer, so far from having taken the slaves by “force, stratagem or fraud,” only discharged a duty imposed upon him by the law. Under such circumstances, he cannot be said to detain them unlawfully, when he holds them to enforce the payment of fees allowed him by latv, for the services rendered, and the expenses incurred under the writ.

It Avould probably have been right and proper on the part of the sheriff, to have given up all the negroes, except one of sufficient value to pay the fees. But Ave can make no decision to that effect, because, in our vierv of the law, the facts did not authorize the proceeding by habeas corpus.

The judgment is reversed, and the petition dismissed, at the costs of the petitioner, both in this court, and upon the trial below.

Judgment reversed.

Judge Sharkey gave no opinion.  