This is an action of tort, in the nature of trover, for certain coupons of United States bonds, alleged in the declaration to be the property of the plaintiff and to have been converted by the defendant to his own use. The undisputed evidence at the trial showed that the bonds had belonged to the plaintiff, and had been stolen from him, and delivered by one who received them from the thief to the defendant, and by him sold and turned into money, which he is admitted to have paid over to his principal. But the jury have found that in so doing the defendant acted only as agent of the person from whom he received them, and did not know, and was not guilty *506of gross negligence in not knowing, that that person had come dishonestly by them. It does not appear that the plaintiff ever demanded of the defendant either the coupons or their proceeds, or that the defendant personally derived any benefit from his acts. The principal question in the case is, whether, under these circumstances, he is liable in this action. This is an important question, and has received great consideration from the court.
An action of tort for the conversion of personal property, under our present system of pleading, requires such evidence to support it as would have proved a conversion in an action of trover at common law; and cannot be maintained without proof that the defendant either did some positive wrongful act with the intention to appropriate the property to himself or to deprive the rightful owner of it, or destroyed the property. Fouldes v. Willoughby, 8 M. & W. 540. Heald v. Carey, 11 C. B. 977. Gen. Sts. c. 129, § 81. Robinson v. Austin, 2 Gray, 564. Loring v. Mulcahy, 3 Allen, 575. Parker v. Lombard, 100 Mass. 405. In the last case, Mr. Justice Hoar says that if a bailee, being intrusted with the possession merely, transfers the possession according to the directions of the person from whom he received it, without notice of any better title, and without undertaking to convey any title, this does not appear to have been held any evidence of a conversion; and cites Strickland v. Barrett, 20 Pick. 415, and Leonard v. Tidd, 3 Met. 6. So where chattels were delivered by the owner to a bailee, with the right to purchase them by paying a certain price, so that he had the actual legal and rightful possession, although he had not performed the condition on which he was to have the absolute title, and he sold them to a third person, who resold them before any demand made upon him and without notice of the agreement between his vendor and the original owner, he was held not to be liable to the latter in trover. Vincent v. Cornell, 13 Pick. 294. See also Day v. Bassett, ante, 445. And trover will not lie against a servant for taking goods by his master’s command and for his master’s use, when the command is not to do an apparent wrong and the servant’s possession is lawful. Bul. N. P. 47. Powell v. Hoyland, 6 Exch. 67.
*507In the case of a sale of goods, indeed, the purchaser is bound to look to his title, and, if he obtains them from one who is not the lawful owner or his authorized agent, cannot hold them against him. 2 Kent Com. (6th ed.) 324. If the goods have been stolen, the property does not pass by delivery, and a per., son who derives his title from the thief gains no rights as against the lawful owner, and if he either refuses upon demand to deliver them up, or sells them and turns them into money, or otherwise converts them to his own use, he is liable to the lawful owner in trover. Dame v. Baldwin, 8 Mass. 518. Heckle v. Lurvey, 101 Mass. 344. Upon this principle, it is held that an auctioneer, who receives and sells stolen goods, not knowing nor having reason to believe that they were stolen ; or a person who in good faith buys a stolen horse, and afterwards exercises dominion over him by letting him to a third person; is liable to the rightful owner in trover, without a previous demand. Hoffman v. Carow, 22 Wend. 285. Coles v. Clark, 3 Cush. 399. Gilmore v. Newton, 9 Allen, 171. Yet even in the case of stolen goods, a mere naked bailee, who does no act, and has no intent, to convert them to his own use, or withhold them from the owner, and, before any demand made upon him, delivers them back to the person from whom he received them, is not guilty of a conversion, although he knew that they were stolen. Loring v. Mulcahy, 3 Allen, 575.
But, in the opinion of a majority of the court, the coupons in question do not stand upon the same ground as chattels. They were negotiable promises for the payment of money, issued by the government, payable to bearer and transferable by mere delivery, without assignment or indorsement. They are therefore not to be considered as goods, but as representatives of money, and subject to the same rules as bank bills or other negotiable instruments payable in money to bearer. Wookey v. Pole, 4 B. & Ald. 1. Gorgier v. Mievitte, 4 D. & R. 641; S. C. 3 B. & C. 45. Commonwealth v. Emigrant Industrial Savings Bank, 98 Mass. 12. The rule of caveat emptor does not apply to them. It is now well settled that the bearer of a bank bill which has been stolen from the bank may recover the amount from the *508bank, unless it is proved that he did not take it in good faith and for valuable consideration ; and that his knowledge of suspicious circumstances is immaterial, unless amounting to proof of want of good faith. Worcester County Bank v. Dorchester & Milton Bank, 10 Cush. 488. Wyer v. Dorchester & Milton Bank, 11 Cush. 51. Raphael v. Bank of England, 17 C. B. 161. And, according to the great weight of authority, the same rule applies to bills of exchange dr promissory notes payable to bearer. Goodman v. Simonds, 20 How. 343.
The jury have found that the defendant took these coupons in good faith, without gross negligence, and as agent of his employer. He thus acquired a lawful possession of them, which was no evidence of a conversion. He then, before any demand or notice from the rightful owner, transferred them by delivery, and exchanged them for money, the amount of which he paid over to his employer. This case does not present the question whether the defendant could have been held liable to the rightful owner for the coupons or the proceeds while in his own hands, nor whether he could be held to have paid value for them. The single question is, whether he has been guilty of a wrongful conversion; and, considering the nature of the instruments, and the fact that the defendant was acting in good faith, without gross negligence, as agent only, without himself receiving, any benefit from the transaction, a majority of the court is of opinion that neither taking the coupons by delivery, transferring them by delivery, nor paying over the proceeds to his employer, constituted a conversion for which he can be held liable in an action of tort in the nature of trover. Addison on Torts, (3d ed.) 317. The instructions to the jury were therefore quite favorable enough to the plaintiff.
The letter admitted against the objection of the plaintiff was competent evidence of the manner in which and the circumstances under which the defendant received the coupons, although it did not of itself prove that it was written by his employer. Exceptions overruled.