I concur with the Chief Justice, for the reasons given by him.
Slidell, J.Before stating the material facts in this case, a brief notice of the pleadings is necessary. After the levy of the attachment by the plaintiffs, merchants of Cincinnati, White, Warner 8f Co. filed their petition of interrvention, in which they allege that they are the bond fide owners of the property attached, by virtue of a bill of lading transferred to them before the attachment; that they came under acceptances a-nd liabilities for Matlock dj* Co. for about the sum of $26,000, in pursuance of a previous agreement and letters of credit, by which the intervenors were to pay $6000 for the defendants, and also accept bills for them, and be covered by shipments; that the property attached was shipped in fulfilment of such agreement, and, having been received at New Orleans by White, one of the intervenors’ firm, was to have been forwarded to Philadelphia to them,' for sale, the proceeds to be placed to account of the advances ; that the intervenors are the owners of it, or at least are entitled to a privilege upon it. The prayer is alternative, that they be adjudged the owners of the property attached, or that they be recognized as privileged creditors. Such I consider the fair substantial purport of the petition of intervention, although *374it is inartifieially drawn. The answer of the plaintiffs, who made no exception to the intervenors’ pleading, accords with this view. They not only deny that the intervenors are creditors of superior rank, “but also expressly deny that they are owners of the property.” Under these pleadings I think the intervenors entitled to have their rights considered upon both points: first, had they at the date of the attachment such an ownership as placed the property, on its transit through N.ew Orleans to Philadelphia, beyond the reach of an attaching creditor of Matlock By Co.; and secondly, if not entitled to have the property discharged from the attachment, are the intervenors entitled to a decree of privilege upon the property in the hands of the sheriff. I am of opinion that, under our rules of pleading, such an ¡alternative prayer is admissible; it seems to me not a case of inconsistent pleading, within the intendment of the Code of Practice. 'The case is different from that of He L’ Homme, curator v. He Kerlegand, 4 La. 360. There the court said: “ The suit is brought to recover certain property, and at the same time to enforce the payment of a note due by the defendant ¡to the deceased. It appears very clearly in evidence that this note was given in payment of the property sued for; and it is equally clear that two such demands cannot be cumulated in the same petition ; they are inconsistent, and by an express provision of law, one excludes the other. Code of Practice, art. 149.” Iu .the case of Barrett v. Zacharie, the reason for remanding was that, the plaintiffs’ pleadings had not presented his real grounds of attack, and the defendant, having been taken by surprise, was not permitted to suffer by an obscurity of pleading for which his adversary was in fault.
Being of opinion, therefore, that the intervenors are not excluded by defective pleading from an examination of the full merits of their cause, I proceed to state briefly the case, as presented by the evidence.
It appears that Matlock By Co. and White, Warner By Co. had commercial dealings with each other, on previous occasions. The former were western dealers in pork, raising funds by drafts on the intervenors, which were provided for by shipments to them. The attachment was levied on the 16th February, 1846; on the 13th February, White, Warner By Co’s house, by their partner then present at New Orleans, got the bill of lading for the property attached, and was making arrangements for its shipment to Philadelphia. This transfer of the bill of lading was in pursuance of a previous agreement, as follows: In October, 1845, the defendants, in Indiana, addressed the intervenors at Philadelphia, informing them that they were collecting large supplies of live stock, and wanted funds; that they had a debt of $6000 to pay to parties in Philadelphia, which they desired the intervenors to pay for them ; and also desired letters of credit for $15,0.00 or $20,000, to be covered by promised shipments, as on previous occasions. The intervenors acceded to this proposal, gave the letters of credit, accepted drafts in favor of the Philadeldhia creditors for $6,000, which they subsequently paid, to wit, in the spring of 1846 ; they also accepted bills of the defendants, drawn upon the letters of credit, to the amount of $21,000. At the time when the testimony was taken under commission by the intervenors these latter acceptances had not matured; but it is proved that they had been given, and that the acceptors had made arrangements to meet them. No provision was made for them by the defendants, save by shipments of produce not sold at the time of taking the testimony; but the value of which, including that in controversy, it is satisfactorily proved would not cover the acceptors.
I consider these facts as establishing in the intervenors such an ownership of *375the property attached, acquired by them iu good faith and in the usual course of mercantile dealing, in pursuance of a fair antecedent agreement, as placed the property beyond the control of the defendants, and beyond the reach of attachment upon its transit. The intervenors were entitled to have it all pass undisturbed to its destination. If property could be thus arrested on its transit, and an acceptor, whose name is out on the faith of the shipment, be left to meet his acceptances out of his own funds, while the property is locked up in transitu by the process of a foreign court, into which the distant consignee is dragged to litigate, commerce would become so dangerous that no prudent man would engage in it. I do not conceive that the absence of proof that the acceptances have been all paid, changes the nature of their case. The intervenors made themselves primarily liable by accepting the bills; by this agreement, and the transfer of the bill of lading, the property fell under their qualified ownership, to enable them to meet the acceptances. They have proved a payment of Í6000, and their liability for the residue is not shown to have been removed. Even if White, Warner Sf Co. have not taken up those bills, yet, in the absence of proof that the defendants have themselves taken them up, we must consider the acceptances as outstanding, and the intervenors still primarily liable. Moreover, the agreement entitled them to have the selling of the property in Philadelphia, and thus earn their commissions, which formed part of the consideration for putting out their names.
It is proper to add that, there is no proof of a fraudulent combination to cloak the property, nor do I see any reason to suspect it*
On the first point, therefore, I think the case is with the intervenors, and that there should be judgment in their favor setting aside the attachment. It is not necessary, if the above views be correct, to examine the second point.