
    Fowler vs. Norman.
    Where slaves had been committed to the custody of a jailor as runaways and make their escape before the lapse of twelve months: Held, that the sheriff acquires no such lien upon them for his fees, as will sustain an action of detinue against a third person for the recovery of the possession of them.
    A negro man, a slave, was committed to the custody of J. W. Fowler, sheriff and jailor of Shelby county, on the 24th October, 1837, and remained in his custody one hundred and ninety days. A negro woman was also committed to his custody on the 22d April, 1833, and remained in his custody thirty days. They made their escape, and on the 18th of May, 1838, they were, by virtue of a mittimus, committed to the custody of the sheriff and jailor of Carroll county, as runaways. After said slaves had been in the jail of Carroll county three months, Fowler, by his authorised agent, demanded the slaves of the jailor of Carroll arid tendered him the amount of his fees. He received his fees, ninety-nine dollars, and the agent of Fowler took his receipt therefor. He, however, subsequently refused the surrender of the slaves to the agent, and offered to return the money paid to him, which Fowler’s agent declined receiving.
    Fowler instituted an action of detinue in the circuit court of Carroll county, against Norman, sheriff and jailor, on the 3d day of September, 1838, and the above facts were submitted to a jury at the May term, 1S40. The court, Benjamin C. Totten, judge, charged the jury, that a right of property, either general or special, must concur with the right of possession in the plaintiff, to enable him to maintain the action of detinue; that some of the processes of the law would vest in the officer sufficient title for that purpose, hut that the mittimus was not of that character; that although he might compel the owner of the slaves, before surrendering them, to pay the fees due for keeping them, yet that provision, resulting from public policy in reference to slaves, would not create such a lien upon, or title to them, as would enable the jailor, from whose custody they had escaped, to pursue them by action of detinue into the hands of another jailor, into whose hands they came as runaways ; and, that the fact of the payment of the fees to the sheriff of Carroll, would not alter the case.
    
      The jury under this charge, brought in a verdict for the defendant. A motion for a new trial was made by plaintiff, and overruled. The plaintiff appealed in error to this court.
    
      McLanahan, for Fowler.
    
      Pavattj for Norman.
   TuRuey, J.

delivered the opinion of the court.

This is an action of detinue, brought by the plaintiff in error, against the defendant, to regain possession of two negroes, a man and woman. Upon trial, a verdict and. judgment were rendered for defendant; a motion for a new trial was refused, and the bill of exceptions makes out the following case:

The negroes had been committed to the custody of the jailor of Shelby county as runaway slaves, and had remained in his custody for a period of time short of twelve months; they had broken jail and been recommitted as such to the jail of Carroll county. The plaintiff, as sheriff of Shelby county, demanded the negroes from the defendant, as jailor of Carroll county, and paid him his fees for the time he had them in custody, which, however, were immediately offered to be returned, and were refused by the plaintiff.

Thé question presented, is, had the plaintiff (under the circumstances) such a lien upon the negroes for his fees of detention as will give him this action? We think not. It is provided by the act of 1825, ch. 77, sec. 1, that in all cases, where any slave shall have been committed to any of the jails in this State as a runaway, and shall have been duly advertised by such jailor as required by the laws of this State, and shall not be reclaimed and proven away by the owner, and shall have been imprisoned for the term of twelve months, it shall and may be lawful for the sheriff, having previously advertised the same thirty days, to expose such slave to public sale to the highest bidder, and to apply the proceeds in the first place to the payment of the costs and jail fees, and the surplus to pay to the county trustee. It is contended, that this statute vests the sheriff -with such a legal right as to enable him to maintain detinue for the slave, if he or she escape from jail. We do not think so. His duties as prescribed by. the act, are merely official, and if the contingency upon which their performance depends, does not arrive, he cannot exercise them. That is, if the negro does not remain in the jail of the county for the space of twelve months, without being claimed and proven by his master, the sheriff has no duties to perform under the law; and having none to perform, he can have no interest in his possession, and can bring no action to regain it. The judgment of the circuit court will, therefore, be affirmed.  