delivered the opinion of the court.
This suit is instituted by attachment on a promissory note, and a quantity of cotton seized, as the property of one of the *147endorsers, whose liability to the holders is established by proof of his signature, and notice of the dishonor of the obligation. i
The party or consignee who claims to have a privilege on property consigned for advances, must show, (/- jirmalively, that the property was at his disposal, or that he liad received a bill of lading or letter of advice, previous to the seizure, or he cannot hold against an attachment.The controversy arises, mainly on the intervention of Ford & Co., of New-Orleans, consignees of the cotton, on which they claim a privilege for advances, having received, as they aver, a bill of lading therefor, before it was attached by the sheriff.
The court decreed in favor of the plaintiffs, and the intervenors appealed.
By article 3214 of the Civil Code, the consignee has a privilege upon the goods consigned, “ if they are at his disposal in his stores, or in a public warehouse ; or if, before their arrival, he can show by a bill of lading, or letter of advice, that they have been despatched to him.
It, therefore, appertained to the intervenors to show affirmatively, either that the cotton was at their disposal, 'or that they had received a bill of lading or letter of advice, previous to the seizure by the sheriff, otherwise the interventional claim cannot prevail. 1 Louisiana Reports, 359.
We have carefully examined the testimony coming up with the record, and find abundant proof that the attachment was levied in the forenoon of the‘25th November, 1836, before the cotton had come to the possession of the consignees. But it does not appear at what time they received the bill of lading, or letter in which it was enclosed. The principal witness who speaks to this point, is Page, their clerk, who states that “ he cannot say when the bill of lading was received, but is certain it was received on that day, at what hour he cannot say.”
We think with the judge who tried the cause in the first instance, that the testimony is not sufficient to support the claim set up by the intervenors, and that the judgment ought to be affirmed.
It is,, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed ; that the inter-venors and appellants pay the costs of appeal, and the defendant those of the court below.