Governor v. Pearce

WALEER, J. — The charge given, and the refusal to charge, present the following question: Are a sheriff and his sureties liable, in a suit upon his official bond, for an injury to a slave, while in jail, caused by the jailor’s negligence, which slave was apprehended by a justice of the peace, and by him carried directly to the jail, and delivered to the sheriff and jailor as a “runaway.” There was no breach of the sheriff’s bond, unless the custody and keeping of the negro was an official duty. Such a duty could not have devolved upon the sheriff, unless the slave was committed to jail as a “runaway,” by competent authority. It could not be either the right or duty of the sheriff, as an officer, to receive or keep the slave in jail, unless he had been committed, as provided in the statute. The law, in reference to the apprehension of fugitive slaves, is as follows: “ All runaway slaves may be lawfully apprehended by any person, and carried before the next justice of the 'peace, who shall either commit them to the county jail, or send them to the owner, if known; who shall pay [468] for every slave so taken up the sum of six dollars to the person so apprehending him or her, and also all reasonable costs and charges.” — Clay’s Digest, 541, § 14. Three distinct acts unite in making the whole proceeding under this statute, which terminates in the imprisonment of the slave: the capture and carrying of the slave before the justice of the peace; the ordering the imprisonment of the slave, and the carrying of the slave to the prison. To make out of the facts here .presented a compliance with the statute, we must hold, that the justice of the peace, having apprehended the slave, by a mental process deemed the slave brought before him as a justice of the peace, and then, acting mentally upon facts known to himself as a justice of the peace, adjudged that the slave be committed; and proceeded at once to execute the judgment by carrying the slave to the jail. Ve regard the judgment of commitment, if one can be said to have been rendered, as void for want of jurisdiction. The statute contemplates that the captor of the slave shall carry him before the next justice of the peace; and that thereupon the justice shall take jurisdiction, and commit or send the slave to his owner. No importance is attached to the phrase “next” justice of the peace, save as it conduces to show that the slave is to be carried before some other person than the captor. The jurisdictional fact is the carrying of the slave before a justice of the peace as a runaway. That fact did not exist. It is in its nature a distinct fact upon which the authority of the justice depends, and can not be supplied by the intendment of the justice, that he, having apprehended the slave, has carried him before himself as a judicial officer. The power to commit the slave is special and statutory, and can not be exercised in the absence of the preliminary jurisdictional fact. It is true that, when a judicial tribunal is charged with the ascertainment of a jurisdictional fact, and has decided that fact to exist, its decision is conclusive. But in the case put by the charge there was an entire absence of the jurisdictional fact, and no evidence that the existence of that fact was ever passed upon by the justice. [469] We do not inquire bow far the doctrine of estoppel might affect the sheriff, if he were sued alone; but it is clear, that there is no estoppel operating in this suit upon the official bond of the sheriff. Upon that bond no recovery can be had save for official misconduct. “ The sureties of a sheriff are not liable for a malfeasance of the sheriff, unless the act complained of includes an omission to perform some duty imposed by law.” — Governor v. Hancock & Harris, 2 Ala. 728. That the sheriff represented an act to be official in its character, or that he has assumed to act where he had no authority virtute officii, cau never estop the sureties from alleging the truth; because they are only bound by his representations and his conduct, when discharging a duty imposed by law. Dean v. Governor, 13 Ala. 526; Fitzpatrick v. Br. Bank, 14 Ala. 533; Farmers’ Bank of Chattahoochie v. Reid, 3 Ala. 299; Dumas v. Patterson, 9 Ala. 484. We are led by the views above expressed to the conclusion, that the receiving and retention of the slave in jail was not an official act of the sheriff — not the discharge of a duty imposed by the law; and, consequently, no suit can be maintained upon the official bond on account of an injury caused by the careless and negligent manner in which the jailor kept the slave. The judgment of the circuit court is affirmed.