dissenting:
As I have not been able to convince myself of the.correct*330ness of the conclusion the majority of the court have ar-rjve¿ at on one branch 0f this case, I shall state the reasons of mv dissent.
The majority of the court think the intervenors, Lambeth & Thompson, are entitled to a privilege and preference over the attaching creditor on the proceeds of the thirteen bales of cotton shipped by the defendants to the intervenors. On this point I differ with them.
The intervenors are the factors or commission merchants in New Orleans of the defendants, who are merchants in Vicksburg. The clerk and book-keeper of the intervenors says, they have had a running account with defendants for two, or three years, in which the balance has always been against them. The present balance is about $38,000, and since January, 1840, has not been less at any time than $6000. A great deal of the business of Lambeth & Thompson consists in making advances on cotton. They are sometimes made in cash, sometimes by acceptances and sometimes by advancing cotton bagging, rope and provisions. Has never known them to make advances except when property was in hand or expected. Defendants are merchants in Vicksburg and have been in the habit of purchasing large quantities of cotton from their country customers. The arrangement as to the business between the parties, is, Lambeth & Thompson accept drafts at short sight or date, with the understanding they are to-be met by cotton to be shipped them. Lambeth & Thompson send the defendants bagging, rope, and provisions to be paid for by cotton. From two to three thousand bales of cotton were received from August, 1839, to August, 1840, under this arrangement. Bills at long dates are sometimes accepted. The cotton is generally sold as soon as it arrives and defendants have n'o control over it. They could not take the cotton out of the hands of Lambeth & Thompson until they paid them. The bills of lading are in all cases sent to Lambeth & Thompson. The understanding is not in writing and he derives his knowledge of it from the tenor of the defendants’ letters and *331conversations with them. Knows of no specific or particular advance on the thirteen bales of cotton in question; they were received under the arrangement mentioned.
It is not shown, that the intei'venors made any specific advance on the thirteen hales of cotton, and are therefore not entitled to a privilege, under the article 3214 of the Code 5 consequently the plaintiff’s attachment ought to hold the property.. The intervenors in their answers to the supplemental interrogatories say, the debt of defendants to them accrued by making them advances, and they bound themselves to forward cotton and pay cash to meet said advances. The thirteen bales of cotton came into their hands under that agreement. They then proceed to say, they are factors, the defendants are merchants at Vicksburg, who purchase cotton which they consign to them. They making advances, &c. “The arrangement between Aiken & Gwinn and Lambeth & Thompson was based on a well known custom to both parties. There was no writ ten agreement.”
It is not shown that the intervenors made any specific advances on these thirteen bales of cotton, yet they claim a privilege on them and the judgment of the court allows it. .
Previous to the adoption of the Louisiana Code, by the mercantile law, factors were entitled to a lien on produce or goods, or their proceeds in their hands, for a general balance of accounts; 8 Martin, 486; 9 Idem, 297; 1 Martin, N. S., 261; 1 La. Rep., 363; 2 Idem, 440.
The article 3152 of the Louisiana Code says, privileges can only be claimed for those debts to which it is expressly granted. The article 3214 says “ every consignee or commission agent, who has made advances on goods consigned to him, or placed in his hands to' be sold for account of the consignor, has a privilege for the amount of these advances, with interest and charges on the value of the goods, if they are at his disposal in his store, 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.”
When the legislature adopted these articles of the Code, I not only infer, but it is evident from the expressions used, some change in the law was intended. The intention to my mind is clear that the privilege was intended to apply to specific ad-*332vanees alone, and so thought this court in the cases in 13 La. Rept> 490, and 14 Idem, 8; and in the latter volume, in the case of Turpin vs. Reynolds, 473, the principle of privilege was carried a step further; but the decision in this case goes beyond it, which in my judgment abolishes the article 3214 entirely; and establishes the privilege for general balances, as the law existed before the adoption of the Code. To this as a question of law or expediency, I am entirely opposed.
As relates to persons out of the State, this is now a question of ho consequence, as the legislature by an act passed at the last session gives a privilege to factors for balances due by nonresidents ; Acts, 1841, pp. 21, 22; but as it relates to our citizens, the question is an important one, as factors become a class of privileged creditors, although the law says no man shall be so, except by express legislation.
In regard to the proceeds of the thirteen bales of cotton, I think the plaintiff ought to recover, and think the judgpaent should be so amended.