This is a controversy between two commission houses, each claiming a privilege to the exclusion of the other, upon seventy-three bales of cotton.

The seventy-three bales are a part of the same lot on which the defendants in this suit were decreed to have a privilege as against Bradley, Wilson & Co., the original vendors, in the case of Campbell v. Penn, reported in 7 Ann. 372, where most of the facts material to the present suit, are detailed.

There was a difference of opinion among the members of the court, which decided the former case, a majority holding that Campbell & Ridlcarby had a privilege as against unpaid vendors, only upon such portion of the cotton transferred to them on the books of the press as had been weighed, and the dissenting Judge being of opinion that they were entitled to a privilege upon the whole list, whether weighed or not.

That question has no necessary bearing upon the decision of the present case. Bradley, Wilson & Co. are no longer parties to the suit, and it is admitted that the seventy-three bales in dispute passed the scales.

Both of the present parties had made large advances to one Simpson, a cotton speculator who failed and absconded on the evening of the 7th June, 1851.

The privilege of a commission merchant or consignee for advances, does not attach until the property on which the advances are predicated, comes into the possession, actual or constructive, of the party claiming the privilege.

But the plaintiffs say, that they alone are entitled to a privilege here, because this cotton was to have been shipped on the Sallie Fearn, one of the vessels which was to carry the cotton on which they advanced, whereas the defendants *532only advanced on cotton to be shipped by the Epaminondas. The fact is not entirely clear, nor do we deem it material under the circumstances of this case. The last advance made by Campbell & Riclcarby, is established by the following receipt:

“Received, New Orleans, June 7th, 1851, from Messrs. Campbell & Rickar-by, ten thousand dollars on account. (Signed,) Jno. 0. Simpson.”

Here nothing- is said about the contemplated mode of shipment, and the cotton in question was at that moment in the Union Cotton Press, and standing-on the black book in the name of Campbell & Riclcarby. It is true that the words “ ship Saliie Fearn” preceded the shipping mark [Q. S.] of the 100 bales, (which included these 78,) or were placed there on the evening of the 7th of June. But on the same day, the following order was given by the clerk of Keene, the broker and the general agent of Simpson in these transactions:

“ Union Press will please compress and send on board ship Saliie Fearn, the undermentioned cotton, for account of Campbell, Riclcarby & Co., [Q. S.] 1/100, and oblige N. B. Keene, per H. Panipaee,

“ New Orleans, June 7th, 1851.”

Upon this order, appears the following memorandum : “We wish the Union Press to send this cotton on board at once. (Signed,) Campbell & Rickakby.”

They signed this memorandum on the 8th of Juno, but there is no evidence to impeach their good faith or to show that they were aware that any body except Bradley, Wilson & Co. had a claim adverse to theirs on these 100 bales. Under the decision in Campbell v. Penn, they gave up to the vendors, Bradley, Wilson & Co. twenty-seven of these bales, they not having passed the scales at the time Bradley, Wilson & Co. sequestered, which narrows this controversy with Hamilton, Mackinder & Go. down to seventy-three bales.

The plaintiffs do not pretend that they ever had actual possession of this cotton. Wo understand them to admit the possession of the defendants, but they urge that this possession was acquired through the error and mistake of the clerk of the broker Keene, and that it must therefore enure to their benefit; in other words, that the actual possession of the defendants, acquired by mistake, must bo hold in law to be the constructive possession of the plaintiffs.

Supposing the facts to bo as alleged, this conclusion could not be admitted for a moment, as between two innocent parties claiming privileges of the same grade upon the same thing.

But there was as much of design as of mistake in this transaction.

Bradley, Wilson & Co. really sold this cotton, with a large lot besides, to Simpson. But at the suggestion of the broker, Keene, and to protect themselves as the price was not paid, thej' gave their order on the press where it was stored in favor of Keene, not of Simpson, Keene then had the ostensible control of the property, but was really subject to the orders of Simpson. Oiffney, a ship broker, who seems to have been the active friend of Campbell & Riclcarby, and aware that they had made large advances to Simpson, told Keene on the fifth or sixth of June, that they wished all the cotton on which they were advancing, transferred to them. Keene apprised Simpson of their wishes, and was ordered by him to transfer the whole lot to them on the black book of the Union Press. This he did on the 0th of June, under his own hand, entering the whole list, without distinction, as sold directly “from Bradley, Wilson & Co. to Campbell, Riclcarby & Co." This was a symbolical delivery of the cottou to them. Af-*533tenvards, on tho evening of the samo day, Simpson, aware of his approaching discomfiture, and anxious to lull the suspicions of another creditor, oven at tho expenso of truth and fair dealing, ordered one hundred bales of tho lot which had thus passed from his control, to bo classed out by Keene and sent to the Sallio Eearn for Hamilton, Maokinder & Go. All that Keene did under this order, was to have the one hundred bales classed and marked with the shipping mark [Q. S.], and to tell Hamilton, Mackinder & Go. that he was classing it out for them, all of which was done on the next day, the 7th of June. Ho did not notify Campbell & Riekarby. Ho did not even instruct his clerk of this new intention, as appears from tho facts already mentioned, that the clerk gave an order on the 7th instant, in Keene's name, for tho cotton in this shipping mark to be compressed and sent on board the Sallie Eearn, for account of Campbell & Riekarby. Keene testifies, that he discovered that his clerk had made a mistake in the entry as to this one hundred bales, but did not wish to make any alteration in the entries on account of the difficulties that had already arisen.

By the usage of cotton presses in this city, the destination of a lot of cotton transferred on its black book, cannot be changed without the consent of the transferree.

It is not shown that either Simpson or Keene were laboring under any mistake as to the one hundred bales, when tho former gave the order to transfer the whole lot, and the latter executed it. Tho lien which attached in favor of Campbell & Riekarby, the instant that transfer was made, could not be displaced without their assent, by a subsequent change of mind on tho part of Simpson, as to tho proper destination of this portion of the cotton.

If the rights of the parties were more nearly balanced than they are, still there should bo judgment for the defendants, under the rule “ melior est con-ditio possidentis."

It is therefore ordered and decreed, that the judgment complained of be affirmed, with costs.