¶1Johnson instituted this suit November 2, 1858, to recover the value of the negro, Arnold, alleged to have been placed in the custody and care of Browne, the appellant, sheriff of Cameron county, on the 20th August, 1858, for safe-keeping, until demanded, for such reasonable compensation as was fixed by law; and avers, that the negro escaped from his custody through the negligence and improper conduct of himself and servants, by reason of which the negro is a loss to him.
¶2This suit, is not brought upon the official bond of the sheriff, but against him alone, styling him sheriff of Cameron county. There was a general demurrer to the petition, which was overruled by the court; holding, the suit was not against Browne in his official capacity, but his natural. This ruling of the court is not assigned as error, and cannot be noticed here further than to see whether there be any error that goes to the foundation of the cause of action. We have not discovered any of that character.
¶3The evidence tends to the conclusion, that Johnson did place the slave in the custody and charge of Browne for safe-keeping; but there is no evidence to show what became of the negro, or any reason accounting for his nondelivery to Johnson.
¶4The court charged the jury, that if the negro was the property of Johnson, and was placed in the custody of Browne for safe-keeping, and has not been re-delivered to Johnson, they must find for him, unless Browne has shown to their satisfaction that he exercised ordinary prudence in *43keeping the slave. The jury found a verdict in favor of the plaintiff below, and this charge of the court is assigned as error.
¶5According to the averments of the petition, Browne received the negro as the bailee of Johnson, and for their joint benefit; that he had permitted the negro to escape, by his neglect, and to the loss of the bailor, Johnson. To this the defendant below plead the general denial. From the pleadings of the parties, the issue was, whether the slave had escaped through the neglect and want of ordinary diligence on the part of Browne. Upon this issue, the burden of the proof was by law placed upon Johnson. (1 Tex., 453, 454.)
¶6Brown received the negro, to be kept until demanded by the bailor, Johnson, and no cause of action could arise until a reasonable demand was made and a failure to redeliver the negro, or he had converted the slave to his own use, or he had been a loss to the owner by the neglect of the bailee, Browne. (Story on Bail., §§ 107, 120.) The plaintiff below did not aver a demand, but that a loss had been sustained by the neglect of Browne and his servants in permitting the negro to escape. If the negro had died or escaped, so that he could not be re-delivered, the bailee, Browne, would not be held liable, until it be shown by the bailor, Johnson, that the death or escape was caused by the neglect and want of ordinary care on the part of the bailee. The burden of proving these things is upon the plaintiff below. (1 Tex., 443; Story on Bail., § 410; 7 Hemp., 134; 6 Penn., 417.) The charge of the court placed this burden of proof on the bailee, Browne, to show that he had acted with ordinary care and diligence, and that the' escape was not by his neglect, which the law presumes until the contrary is shown, and in this ruling we are of opinion there was error, and the judgment is reversed and
¶7Remanded.