delivered the opinion of the court.

This is a suit by attachment, wherein Irwin, Hall & Walton are made garnishees, one of whom, A. Irwin, jr., in his answer to interrogatories, declares, that they have in their possession certain goods, marked W. M'Kinstry. Whereupon an attorney was appointed to represent the absent defendant, who answered by general denial.

At this stage of I he proceedings, Peter Wager intervened, and alleged, that an attachment had issued in the above suit, against certain effects in the hands of Hall, Walker & Walton, of which he was owner. The court was of opinion, that he made out his title to the goods, and dismissed the petition of the plaintiff, who appealed..

At the trial of the cause, the following bill of exceptions was taken by plaintiff’s counsel:

“ Be it remembered, that on the trial of this cause, the counsel for the intervenor offered to read in evidence the written instrument marked, and also offered the testimony of Irwin, for the purpose of proving that said intervenor was the owner of the property attached in this suit, in the hands of Messrs. Irwin, Hall & Walton, to all which testimony the counsel for plaintiff objected, on the ground that said inter-venor had not claimed, in his petition, such property as was attached in the hands of said Irwin, Hall & Walton, but only such as had been attached in the hands of J. Hall, Walker & Walton, which two firms of Irwin, Hall & Walton and J. Hall, Walker & Walton, had been shown to-be entirely distinct and separate commercial houses, doing business in New-Orleans; but the objections were overruled by the court, and the testimony and written agreement aforesaid, admitted in evidence; whereupon, the counsel for plaintiffs took this, his bill of exceptions, and prayed the court to sign the same.”

We think the court erred. An allegation that the intervenor’s goods had been attached in the hands of J. Hall, Walker & Walton, would not warrant the introduction of testimony to show that he was the owner of goods attached in the hands of Irwin, Hall & Walton, which he did not claim. The two mercantile houses are stated to be altogether distinct, and the proof ought to have conformed to the allegata in the petition of intervention.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that this cause be remanded for a new trial, with instructions to the judge not to permit testimony to be introduced contrary to the opinion herein expressed, and that Peter Wager, the intervenor, pay the costs of this appeal.