The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-17
Supreme Court-General Term.

BY Hon. Judges Mitchell (P. J.) and clcrke.
Nov le-it is maintained BY the plaintiffs that the
sion of the goods cannot be affected by the felony.
thief cannot make title to stolen property and the
owner can reclaim 1t from any one, hswever limo.
Gently he might have obtained possession of it, and
whatever may be the amount which he paid for it, If,
for instance the casks of pota shes in question remained
In the store Of the plaintiffs and the defendant Lovett
stole them while in the store and then deposited them
board the Fdea the master of the vessel would be
unou under an obligation to restore them at once
to the plaintiffs BY this rule the law the right
Of the proprietor in personal chattels from being d.
vested in cases where he has done nothing to induce
other But It would not be consistent with the policy
Of commercial community to extend the rule beyond
IN r il IN nd
familiar principle there that all sales and contracts OF
anything vendable in fairs markets overt (open)
shall not be good between the parties but also bind
ing all those that have any right property therein
and in London, every day except Sunday is market
day and every shop in which goods publicly
for sale is market overt for such things only the
owner processes to trade in Here have market
overt although the nature and extent Of commercial
necessities render equally desirable that innocent pur
chasers or haees in fair, open, and regular manner
should be afterwards subjected to difficulty in
the goods them II therefore to modify the rule
at ALL instead Of being extended It should be restricted
In the present case i !, conceded that the receipts
property to which they reate and think the fsacyso
ingenonsly presented behalf Of the plaintiffs con-
sists in not recognizing this distinction The property
let it be remember d. placed board the Fidelia
BY the plaintiffs without any communication with the
but on the r..
IT, and agreeing with them for the freight aud transpor
tation Of it to Liverpool The plaintiffs, pursuant to
their agreement with Lovet and pursuant to lovetts
agreement with the shpowners sent to the place de-
sgnated by Iovet and although they did not intend
that the absolute property in the potashes should pass
with the policy required by the and interests OF
trade to consider the appropriation Of it. under such
circumstances, actual larceny scarcely be af
Hrmed that the plaintiffs had done nothing previous to
the abstraction Of the receipts to beget belief that
Iovett had become the lawful owner Of the shipments SO
that Peabody the master knowing that his owners con-
tracted to transport the goods without reference
to the plaintiffs any interpositon their part sup
posed himself from the beginning to be the baee oil
toyett Was there not at least some color of delivery
TO hinnot absolute of course, but sufficient to mega
tive the idea that the method BY which the shipment
was transferred OF the elonious character as
that by which the receipts taken BY this delivery
on board the vessel designated by Lovet without any
communication with the OF the Fidela, leaving
them under the probable impression that there at
least qualified ownership in him, and thus allowing
him 10 indicia Of such right, his whole con
duct In obtaining possession Of the property should be
deemed fraudulent rather than feonous and although,
where property has been actually stolen the remssness
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
%astsr Of IN. fdes Of the stealing Of the receipts BY
Loyet contributed to confer the apparent right OF pro-
perry in him and i was their duty as II was entirely
and eecualy in their power to set the plaintiffs right
on this point without delay they discovered
that the receipt stolen.
The Judgment should be affirmed with costs. -
The dissenting opinion Of Judge Mitchell is As foi-
lows
MITCHELL 1.-The barrels Of potashes belonged to the
plaintiffs they passed their title to Lovett, or
any else n no receipt for them had been given by
the captain Of the vessel that title would still have re-
manned In the plaintiffs Such receipt given and was
In possession Of the plaintiffs and stolen from them
BY Iovett Then title - acquired even In H.
vsr Of subsequent boa ls purchaser the defendant
eron tn true swnee The stealing u the rscspt end IL