There was no delivery of the property, the subject of this suit, to Lovett & Co., the fraudulent purchasers. The terms of the contract were cash upon delivery, and there is no allegation or proof, that the agreement was modified or changed in the slightest particular. Under this agreement, as the referee finds, the fifty barrels of potashes were delivered, not to the purchasers, but on board the ship of which the defendant Peabody, was master, and receipts were taken, as the answer alleges, xin the name of the plaintiffs. The answer,of Peabody states, “that the receipts so given contained a statement of the receipt in good order from the said John Brown on board the ship Fidelia, of the said fifty casks of potashes, describing them by their marks;” —and in reference to the usage, he avers “ that the receipts for the goods and merchandise so delivered on board such ship, are given by the master of the ship or his agent to the person delivering the same, and that bills of lading are not given to the individuals who have engaged freight therefor, nor to any other person except on the production and surrender of said receipts to the master or his agent, and upon such production and surrender, bills of lading are forthwith given.” Looking at the acts of the plaintiff in the light of the contract and the custom thus established, it is manifest, that there was no intention to deliver the property to Lovett & Co., and that the owners never for an instant parted with the possession of the ashes, but placed them on shipboard in their own names, and took and retained in their custody, the evidences of their title furnished by the defendant, which gave them the absolute control of the property, and bound the ship’s master to execute or withold the bills of lading according to their direction. To call this a delivery to Lovett & Co., or a general delivery, is a palpable misnomer.
Stopping here, vse find the property in the ashes unchanged. They were subsequently demanded of the defendant, wrho refused to recognize the right of the plaintiffs and disposed of them in Liverpool, by the orders of other persons; the onus then devolves upon the defendant to establish a legal right thus to interfere with the property of the plaintiffs without their consent, and against their own wishes. He relies upon *218the fact that the receipts were on the same day presented at the office of the owners of the ship by Lovett, who procured a bill of lading in his own name, and in the same sentence the referee finds that the receipts were stolen from the office of the plaintiff.
The act of Lovett through which the defendant is compelled to make title, was a felony for which he could have been indicted and convicted, under section 66 of the article “ of robbery, embezzlement, and larceny” (2 Rev. Stats., 679). If the custom or usage which lies at the foundation of the de-fence, is valid, the receipts were property, and the value ol the commodity affected, as transferable by the instrument, would be deemed the value of the article so stolen, (Ib. 466.) An argument is unnecessary to prove that a title thus derived cannot be urged to the prejudice of the true owner. The familiar principle is thus stated in Saltus v. Everett (20 Wend., 279.) “ property in things movable can only pass from the owner by his own act and consent, except in those cases, when such owner has by his own direct voluntary act conferred upon the person from whom the iona fide vendee derives title, the apparent right of property as owner, or of disposal as agent.” No fact is found or exists in this case, to make it an exception to the general rule. The receipts, although recognized as prima facie evidence of property in the thing receipted for, in those who have them in possession, do not, it is presumed, enter into the currency, and, like bank notes, become the property of a Iona fide holder.
It is said that nothing but the receipts were stolen; the ashes were untouched. The defendant converted the property, and this act, apparently unauthorized and tortious, he justifies under evidences of title stolen from the possession of the owners. It seems to have been forgotten that the plaintiffs are not required to prove a negative, but the defendant must in some way show affirmatively a transfer of the property in bar of the action.
No reliance was placed upon the facts occurring subsequent to the commission of the felony, by the learned counsel for the respondent. They can have no influence upon the decision It may be true as a matter of fact, what the referee seems to *219have found as a conclusion of law, that the plaintiffs would have acted more wisely by giving immediate notice to the ship owners, instead of pursuing the thief and reclaiming their property, but an error of judgment of this sort, if it was one, cannot divest them of their property or create a title in the defendant.
The judgment should be reversed.