This is an action to recover a flatboat of lumber, alleged by the plaintiffs to be their property, and to have been found in the possession of the defendant without anjr title to it. The prayer of the petition is that the defendant be condemned to deliver up to the petitioners the boat and lumber, or in default thereof, to pay its value— twelve hundred and fifty dollars.
The answer is a general denial of the allegations of the petition.
On the trial of the cause in the Court below, the defendant offered in evidence a receipt for $500, signed by one F. Pearson, purporting to be for the price in full for a boat and its contents of lumber, and also offered parol testimony to prove that he had purchased and paid for the property in dispute. The plaintiffs objected to the introduction of the evidence on the ground of its inadmissibility under the pleadings. The objection was overruled and the evidence received, to which the plaintiffs took their bill of exceptions. We think the Judge a quo erred in admitting the evidence. The rule is, that a party cannot' be admitted to prove what he has not alleged. If the defendant intended to roly on a title by purchase from Pearson as the ostensible owner, he should have pleaded it in his answer. The general issue reduces the controversy between the parties to the question of the truth or falsity of the plaintiffs’ allegations and the legal effect of the facts when proved. It is contended that this case forms an exception to the general rule, because it is alleged in the petition that defendant had taken possession of the property in dispute without title. We are unable to see why, on that account, a different rule of pleading should exist from the general one. If the plaintiffs had claimed damages for a trespass, besides claiming the property or its value, such evidence could have been received under the general issue in mitigation of the damages, but there is no principle under which it could be admitted, without having been specially pleaded in order to prove ownership.
The sequestration was set aside on motion of defendant’s counsel, on the general ground of errors apparent on the face of the record. The grounds for dissolving the sequestration ought to have been specialty assigned in the Court below; but no objection was taken by the plaintiffs to the form of the motion.
The grounds presented by the defendant’s counsel in this Court arc:
1st. That the affidavit is insufficient, in not stating that the defendant was about to remove the property out of the jurisdiction of the Court.
2d. That the plaintiffs do not swear to the ownership of the property.
3d. That the affidavit, being in the alternative, is defective, vague and uncertain.-
*1214th. That the affidavit is not such as would subject the party to perjury, if the facts sworn to were proven to be otherwise.
The words of the affidavit are, “ He, said affiant, fears that the defendant, Auguste St. Dizier, will conceal, part with or dispose of the flatboat and lumber, claimed in the within petition, during the pendency of this suit.” This, we think was a literal compliance with the article of the Code of Practice as amended bjj-the Statute of 20th of March, 1839. The sequestration was improperly set aside and should be reinstated.
Although we think the evidence on the part of the defendant was inadmissible under the pleadings, and cannot give our sanction to such a loose practice of pleading, we are not willing, under the circumstances of this case to preclude the defendant from setting up a title to the property under the receipt, which was improperly received in evidence, and conclude that justice requires the case should be remanded, with leave to the defendant to amend his answer.
It is therefore ordered, adjudged and decreed that the judgment of the Court below be amended and reversed, the sequestration reinstated and the cause remanded for a new trial, the defendant to pay the costs of the appeal.