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The judges delivering their opinions separately.

Eustis, C. J.

The plaintiffs attached, as the property of the defendants, two flatboats, with their cargoes of beef and pork, for a debt of $2,240. The attachment was levied on the lGth of February, 184G, in the parish of Jefferson, While, Warner ¿SfCo., of Philadelphia, intervened, and claimed the beef and pork attached as the holders of a bill of lading, which came to their hands previous to the attachment, viz. on the 13th February. There was a judgment for the plaintiffs against the intervenors, and they have appealed.

The defendants, who were the shippers and owners of the cargoes, were also the owners of the boats, and the district judge considered that the document under which the intervenors claim, though in point of form a bill of lading and signed by the masters of the boats, was not, under the commercial law, a bill of lading possessing the privileges and effect of such an instrument, inasmuch as there were no competent parties to the contract of affreightment, -the captain or master signing it as the agent or representative of the owner. But to this it is to be observed, that, there is a personal contract, between the owner who ships goods on board of his vessel and the captain, by the bill of Jading, and that by transferring the bill of lading the owner binds himself, and makes the contract with the person to whom it is assigned. The district judge was also of opinion that, the intervenors had not established their debt with proper certainly, and that, under the allegations of their petition of intervention, their right to hold the property under the bill of lading could not be supported.

Had we this ease before us on the qn estion of property, as presented by the bond fide possession of a bill of lading for produce on transit from the place of shipment to that of its destination, we then should have to determine on tho right of the creditor to interfere with and break an ordinary mercantile transaction, while in progress towards its completion. But as we understand the issues which the intervenors have thought proper to set their claims upon, their right to hold and retain the property attached is based upon a debt which they undertook to establish, and of which evidence was adduced, and which was due before the trial of the cause. There were various transactions between the intervenors and the defendants, and other shipments made, besides this, of western produce, which was sold on commission by the intervenors in Philadelphia. We have no clue to the state of the accounts between the parties, and non conslat that the defendants owe the intervenors, their factors, a dollar. In the issues tendered by the intervenors, the plaintiffs joined, and under them the testimony adduced was taken by commission, and at the trial, though the bills accepted by the intervenors were long since over due, they were not produced, and no evidence of their payment by the intervenors was given.

Under this state of facts, as presented by the intervenors themselves, we are bound to pass judgment. Can we adjudge this case solely on the apparent rights of While, Warner ^ Co. under their bill oí lading, as they existed on 'the *373day of the attachment, or on their rights as they have placed them before us on the trial of the cause, and under their own evidence? We do not understand that a party is permitted to escape from the consequences of his own substantive allegation, made in his pleadings, even if it should defeat his right to recover absolutely. The right -of property which the intervenors claim in this shipment is, by themselves, based upon the contract of consignment or of pledge, which presupposes the existence of a debt; and, if that debt has ceased to exist, what becomes of their right? Suppose the property itself were under the control of the court, instead of being, as it is, represented by the bond — - we should not be at liberty to give it to the intervenors, under the evidence. They being merchants, and their insolvency not being even intimated, and the drafts being overdue, it is obvious that they have been paid, but not by the intervenors, or they could have produced them. The intervenors are actors ; their case must be determined as they have presented it by their allegations and their evidence.

They ask, in their intervention, for judgment against the defendants for such sum as may be due, and by preference over the attaching creditors. It is true, that there is also an allegation that, 'by the assignment of the bill of lading, they became the owners of the cargoes consigned to them, and that there is an alternative prayer in their petition, “ that it be adjudged that the two flat* boats, with their aforesaid cargoes belong to your petitioners intervening, or that they have privilege” over the plaintiffs, &e. But it is equally clear that the alleged ownership is based exclusively on their being in advance by their letters of credit and acceptances to the defendants; and that it depended exclusively upon that condition, and, if there was no debt, there was no ownership. This again is a question of practice, and one of those which never ought to be presented to bile court. The rules concerning the requisites of petitions and pleadings ought by this time to be understood. The party intervening in this case must be-held to the material and substantive allegations of his petition, and can be permitted to derive no advantage from their contradiction or obscurity, to the detriment of .other parties, who have followed in all respects the regular and usual mode of proceeding. Barrett v. Zacharie, 2 Ann. R. 655. De l' Homme v. De Kerlegand, 4 La. 360. Code of Practice, arts. 149, 172, 393, 394.

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