Irion v. Hume

Citations

• 50 Miss. 419

Syllabus

<p>1. Attachment — Claimant’s Bond — Issue Thereon. — In an issue on a claimant’s bond, ihe burden of proof is on the plaintiff. It is not necessary that he should show title to the properly in himself. He will succeed by showing title in a stranger, as thereby he demonstrates that the property is not liable to the creditors’ demand. Thornhill v. Gilmer, 4 S. & H., 153.</p> <p>2. Same — When Obligor Released — Rule at Common Law, — At common law, when the condition of the.bond is possible at the time of making it and before the same can be performed, becomes impossible by the act of God, or of the law or the obligee, then the obligation is saved. If the condition is impossible at the time of making the bond, the condition is lost and the bond becomes absolute.</p> <p>3. Same — Plea oe Puis Darrein Continuance. — The rule is well established, that whatever new matter has arisen in point of time, since the last continuance, which would defeat the plaintiff’s action, must be taken advantage of by this plea. It serves to present some new fact not in existence at the date of the original pleading.</p> <p>4. Same — Emancipation. — The emancipation of slaves was by a law declaring slavery to have been abolished, etc. The courts must take cognizance of law judicially, and it does not require averment to bring it to their notice.</p> <p>5. Same— Case in Judgment. — S. D. & Co., in 1861, levied an attachment ■ upon certain slaves, supposed to belong to S. I. and W. I. The wives of each preferred a claim to a portion of the slaves levied upon, and gave the claimant’s bond. In 1861, the attaching creditors tendered an issue which was joined in 1866 by D. I., one of the claimants; upon the trial, the jury found for the plaintiffs, but failed to assess the value of the property attached: Held, that it was error in awarding a judgment for the value of the slaves as assessed by the sheriff'in his return upon the attachment, and that as there was no property subject to the plaintiff