delivered the opinion of the court.
Scruggs, Donegan & Co. brought an attachment suit against Thomas and William Ition for $52,370 78, in March, 1861. The attachment in the same month was levied upon sundry slaves and other property. On the 23d of March, 1851, Delilab Irion preferred a claim to part of the slaves, and executed the claimant’s bond in the penal sum of $13,000. Mary M. Irion also claimed another portion of the slaves, and gave bond in the penalty of $22,000.
At the September term, 1861, the attaching creditor tendered an issue, which was joined, in 1866, by Delilah F. Irion. By the casualties of death, and bankruptcy, the original plaintiffs, Scruggsj-Donegan & Co., came to be represented by Milton T. Hume, assignee in bankrupty of Scruggs, survivor, of the members of his firm.
On the trial, the jury found the issue for the plaintiff, in the attachment, but omitted to assess the value of the property. The plaintiff’s counsel, as the record recites, elected to take the value of the property, assessed by the sheriff, at the time of the levy of the attachment, and thereupon the court rendered judgment for $6,500, the aggregate of such value, reciting as a reason for such judgment, that the slaves, since they were levied upon, have become free, and cannot be delivered to the sheriff.
The main question argued by counsel, and urged as grounds for reversal of the judgment is, that the circuit court erred in rendering judgment for the value of the slaves, they having *426ceased to be the subject of property after the claim of Mrs. Irion was propounded and before the trial was had. Art. 299, Code 1857, p. 533, directs, if the verdict shall be for the plaintiff, judgment shall be awarded, as in detinue, against the claimant and the sureties in his bond, for the value of the property. The condition of the bond is, “ for the prosecution of such claim with effect, or in case of failure therein * * * that he will well and truly deliver the same property to the sheriff * * "x' if the claim thereto shall be determined against him.” Art. 295, p. 532. The burden of proof shall be on the plaintiff, and the issue shall be governed by the rules which govern the trial of an issue in the action of ejectment. Art. 298.
The precise issue, of which the execution or attachment holds the affirmative, is that the property is liable to the process, and not whether the claimant has established his title. Although the claimant may not have title, yet he will succeed by showing title in a stranger, for, thereby, he has demonstrated that the property cannot be rightfully subjected to the creditor’s demand. Ross v. Garey, 7 How., 47; Thornhill v. Gilmer, 4 S. & M., 153.
But the argument is pressed with earnesness and plausibility, that but for the interposition of Mrs. Irion’s claim and bond, the slaves would have been sold, and her resposibility is to be measured by the condition of things, as at the time she replevied the slaves from the sheriff. And whatever changes may have subsequently occurred do not exonerate her.
In Edson v. Weston, 7 Cow., 280, the principle was ruled, that the bailee of chattels ts excused for not returning them if he has been deprived of possession by paramount authority ; so is Shelbey v. Scotsford, Yel., 23.
The principle of the common law, stated in the language of Lord Coke, in 1 Ins., 206, a. b., is, that where the condition of a 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 ; as if *427the recognizance or bond be to appear at the next term of a court, and before the day the obligor dies, then the obligation is saved.
But as put by Blackstone, 2 Com., 341, if the condition is impossible at the time of making the bond, the condition is gone and the bond becomes absolute.
So, where a party agrees to do a particular thing which is lawful at the time, and the legislature comes in and makes it unlawful, here the law absolves from the obligation, as sometimes expressed, “ repeals the covenant.” Bradford v. Jenkins, 41 Miss., 334.
It was lawful for Mrs. Irion and her sureties, at the time the bond was executed, to covenant, in the event of failure to prosecute her claim with effect, “ to deliver the slaves to the sheriff.” And it was also possible to have saved the obligation. But while her right was undetermined, and before an adjudication upon it, paramount, public sovereign authority intervened, and, by the emancipation of the slaves, rendered it impossible and illegal to perform the covenant. Her principal obligation was to redeliver the slaves to the sheriff if the court should determine they were liable to the plaintiff’s debt. The court could not so adjudge, because by law they had ceased to be property. If, as the authorities hold, she had been deprived of possession, and of the ability to return, by the sentence of the law vindicating a paramount title in some other person, she would have been excused. Very plainly, she is absolved from that duty by the destruction of the status of slavery and the enfranchisement of the servile race.
But it is insisted by counsel, that, while it is true the slaves are free, nevertheless the plaintiff was entitled to his judgment, for the alternate value. The judgment directed by the statute is, as in detinue, for the specific property if to be had; if not, then the value. The statute adheres to the import of the obligation — that is, primarily, a return of the property to the sheriff; and, inasmuch as the officer has assessed the value, there can be no enforcement of the pecuniary judgment, except upon a failure to-get the property.
*428But it has also been urged, that if it were conceded that emancipation, subsequent to the claim made by Mrs. Irion, might be successfully set up, it should have been by plea puis darrein continuance.
The rule is well settled, that whatever new matter has arisen in point of time, since the last continuance, which would discharge or defeat the plaintiff’s action, must be thus specially pleaded. Bethea v. McLennon, 1 Iredell, 524, is an apt illustration of the rule. As where the defendant in detinue has been deprived of the property, since the last continuance, by a recovery in due course of law. In quite all the cases that we have examined, the plea served to present some new and recent fact not in existence at the date of the original pleading.
But while emancipation is a fact, yet it was produced by a law declaring slavery to have been abolished, and that it shall not thereafter exist. The courts must take cognizance of law, judicially, and it does not require averment to bring it to their notice.
This question has been disposed of by authority, adverse to the position of the defendant in error. Whitfield v. Whitfield, 44 Miss., 270, et sequiter; Young v. Pickens, 45 ib., 556; Tanner v. Battaile, MSS. opinion, 1871.
If the attachment creditor could not take judgment for the slaves as property, he could not recover for their value.
The jury found for the plaintiff in attachment, but made no assessment of value. The provision of the statute allowing the valuation of the sheriff to be accepted as the ascertainment of value when the jury fails to fix it, cannot avail the plaintiff. For if there was no property subject to the plaintiff’s debt, there could be rightfully no assessment of value, nor could there be judgment for the sum so determined.
There was error, therefore, in awarding judgment for the value of the slaves, as assessed by the sheriff, in his return upon the attachment.
Judgment reversed; and judgment in this court on the verdict for the claimant.