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 *386to 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.