The' plaintiffs made ah' agreement in the regular course of business with Lovett,- one of the defendants, to sell to his firm, Thos. E. LoVet't & Co., fifty casks of potashes for $1657.08. The terms were cash on delivery. After the agreement, Lovett engaged freight for the potashes, in the ship Fidelia, then advertised for a voyage'to Liverpool, and the plaintiffs, pursuant to their agreement, sent the potashes on board the vessel by their carman, who took receipts in the usual form, from the mate ; thirty-eight of the receipts stating the casks to have been received from Brower, one of the plaintiffs, the remaining twelve not stating from whom they were received. The delivery *605of the casks of potashes being completed, Lovett went to the office of the plaintiffs, and seeing the receipts on the desk, on which Brower was writing, stole and carried them away. In the course of the same day, he presented them to the owners of the ship, and procured a bill of lading in his own name. Drawing a bill of exchange against the shipment, he assigned the bill of lading to Richard Hasluck, who, in good faith advanced to him, upon this security, the sum of fourteen hundred and fifty-three dollars and thirty-three cents. Peabody, the master of the ship, refused to deliver the potashes to the plaintiffs, but delivered them to the holders of the bills of lading in Liverpool.
It is maintained by the plaintiffs, that the receipts having been stolen, their right to the possession of the goods cannot be affected by the felony.
A thief cannot make a title to stolen property; and the owner can reclaim it from any one, however innocently he might have obtained possession of it, and whatever may be the amount which he paid for it. If, for instance, the casks of potashes in question remained in the store of the plaintiffs, and the defendant Lovett stole them while in the store, and then deposited them on board the Fidelia, the master of the vessel would be undoubtedly under an obligation to restore them, at once, to the plaintiffs. By this rule the law secures the right of the proprietor in personal chattels from being divested, in cases where he has done nothing to induce an innocent party to suppose the property to be in any other. But, it would not be consistent with the policy of a commercial community to extend the rule beyond such cases ; and in England this rule is in many circumstances practically nullified; for, it is an old and familiar principle there that all sales and contracts of any thing vendible, in fairs or markets overt (open) shall not only be good between the parties, but also binding on all those that have any right or property therein; and, in London, every day except Sunday is a market day, and every shop, in which goods are exposed publicly for sale, is market overt, for such things only as the owner professes to trade in. Here we have no market overt; although the nature and extent of our commercial necessities render it equal*606ly desirable that innocent purchasers or bailees in a fair, open and regular manner, should not be afterwards subjected to difficulty in consequence of the knavery of the party who has transferred the goods,to them. If we are therefore to modify the rule at all, instead of being extended, it should be restricted. In the present case, it is conceded that the receipts were stolen; but it does not follow that this can be said of the property to which they relate ; and, I think the fallacy, so ingeniously presented on behalf of the plaintiffs, consists in not recognizing this distinction. The property, let it be remembered, was placed on board the Fidelia by the plaintiffs without any communication with the owners ; but, on the contrary, Lovett alone communicated with them, treating with them as the owner of it, and agreeing with them for the freight and transportation of it to Liverpool. The plaintiffs, pursuant to their agreement with Lovett, and pursuant to Lovett’s agreement with the ship-owners, sent it to the place designated by Lovett; and although they did not intend that the absolute property in the potashes should pass from them, until the latter paid for them, yet, is it consistent with the policy required by the usages and interests of trade, to consider the appropriation of it, under such circumstances, actual larceny 1 It can scarcely be affirmed that the plaintiffs had done nothing, previous to the abstraction of the receipts, to beget a belief that Lovett had become the lawful owner of the shipment; so that Peabody, the master, knowing that his owners contracted to transport the goods, without any reference to the plaintiffs, or any interposition on their part, supposed himself from the beginning to be the bailee of Lovett. Was there not at least some color of a delivery to him, not absolute of course, but sufficient to negative the idea that the method by which the shipment was transferred, was of the same felonious character, as that by which the receipts were taken 1 By this delivery on board the vessel designated by Lovett, without any communication with the owners of the Fidelia, leaving them under the probable impression that there was at least a qualified ownership in him, and that allowing him to assume some indicia of such a right, *607his whole conduct in obtaining possession of the property should be deemed fraudulent rather than felonious; and although where property has been actually stolen, the remissness of the owner in not taking immediate steps to notify others of the theft, cannot affect the character of the transaction itself, yet when considered in connection with the previous circumstances of the case, the omission of the plaintiffs to caution the owners, or the master of the Fidelia of the stealing of the receipts by Lovett, contributed to confer the apparent right of property on him ; and it was their duty, as it was entirely and effectually in their power, to set the plaintiff right on this point, without delay, as soon as they discovered that the receipts were stolen.
[New-York General Term, November 6, 1854.We arrive, therefore, at the same conclusions as the referee, although for reasons somewhat different. The judgment should be affirmed with costs.
Roosevelt, J., concurred.