By the Court,
Bronson, J.
Most of the questions discussed on the argument were decided in the action brought by the plaintiff, Everett, against Coffin & Cartwright, 6 Wendell, 603. The defendants insist, however, that the suit should have been brought by Tufts, Everleth & Burrell, to whom the goods were shipped by Bridge & Vose. It may be conceded, as a general rule, that where goods have been consigned to an individual, the action for a conversion, or other injury to the property, must be brought by the consignee. If the goods have been placed at his absolute disposal, and no other fact appears, the legal presumption is, that he is the true owner. *476But there is no positive regulation or commercial usage which determines who shall sue for an injury to the property. Neither consignor nor consignee,tro such, is to bring the action ; ^ie owner °f the goods. The presumption of ownership which results from an unqualified consignment may‘be rebutted ; and whenever, it appears that the person suing is the real owner, there is an end to the objection that the action should be brought in the name of the consignee. Potter v. Lansing, 1 Johns. R. 223. Davis v. James, 5 Burr. 2680. Dawes v. Peck, 8 T. R. 330. What were the facts ? Bridge &f _ Vose shipped the goods at New-Orleans to Tufts 8 Co. of New- York; they paying freight. The bill of lading was enclosed in a letter to the consignees, advising them of the shipment of the goods to their address, and that the property'was shipped “on account and risk of Mr. Otis Everett, of Boston, - from whom you will please receive instructions respecting the disposal of it.” Tufts f Co. were further instructed, if the Boston market was better than that of New-York, to forward the lead to Boston, “ without waiting to hear from Mr. E.” If there could be a doubt upon this evidence that the plaintiff, and not the consignees, owned the property, that doubt- must be removed by- the testimony of Tufts, who was one of the house of Tufts f Co. to whom the goods were consigned. He swears, that so far as he knows or believes the property belonged to the plaintiff. The action was properly brought by Mr. Everett.
The defendants rely most strongly on the ground that they were bona fide purchasers of the property, under'such circumstances as will protect them against the claims of the true owner. That they purchased in good faith, and paid the market value, cannot be questioned; but they unfortunately contracted with one who had no right to sell. Coffin Cartwright seem to have acted as the agents of Capt. Collins; and the . enquiry is, what authority had Collins to dispose of the goods-This question was considered in the former case ; but the defendants think they stand on better ground than Coffin &f •, Cartwright did—that may be true, for Coffin & Cartwright were only the agents of Collins, and the defendants are bona fide purchasers. They then insist that Capt. Collins had in *477New-York the usual documentary evidence of title ; and that both of the parties in controversy being equally innocent, the loss, in consequence of the wrong act of Collins in selling the goods, should fall on the plaintiff, who enabled him to commit the fraud. This argument would be unanswerable, if Tufts Co., the original consignees, had sold the goods. Lickbarrow v. Mason, 2 T. R. 70. Root v. French, 13 Wendell, 572. 15 East, 38. But neither the plaintiff nor his agents furnished Collins with any documentary evidence of title; nor have they enabled him to commit the fraud in any other way than that of putting the goods at New-Orleans on board the Dove, of which he was master, and taking from him a bill of lading to deliver the property to the consignees in New-York. The only documentary evidence which Collins had in New-York, to prove his authority to dispose of the goods, was evidence made by himself, or by Myers, his agent at Norfolk. The Dove put into Norfolk in distress, and Collins there sold a part of the lead to pay charges. It is impossible to say, upon the facts disclosed on this trial, that the sale there was a legal one; but that question does not arise in this case. Collins then caused the rest of the lead to be shipped for New-York on board the Dusty Miller, of which Johnson was the master, and took a bill of lading to his own order. This was an unauthorized act on his part. No sufficient reason is shown why the Dove did not resume and complete her voyage to New-York; Abbott, 240; but if there was any necessity for employing a new vessel, the goods should have been forwarded to Tufts &f Co., the original consignees. The plaintiff, then, has done nothing to enable Collins to commit the fraud, beyond the mere shipment of the goods at New-Orleans. The only remaining inquiry on this point is, what authority has the master over the goods on board his vessel ? They are committed to him as a common carrier, tobe delivered to the consignee at the place of destination, and not as an agent, to sell or otherwise dispose of the property. In case of necessity, an urgent or absolute necessity, as some of the cases lay down the rule, he may sell the cargo or hypothecate the ship.. A sale under such circumstances will bind the owner; but if the transfer is not required by the circumstances in *478which the master is placed, no title will pass to the purchaser. Abbott,241,4. Freeman v.East India Co.,5 Barn.& Ald.617. It would be a most dangerous doctrine to hold that the master of a vessel can dispose of the cargo at pleasure, or whenever he .chooses to put money in his own pocket., as was the case of the sale made by Collins. Independent of the character of master, the most that can be said of the right of Collins to sell is, that he was lawfully in possession of goods which belong- ' ed to another. He was not entrusted with the property for «. the purpose of selling it, and could transfer no title to the. • purchaser. Williams v. Merle, 11 Wendell, 80. ■
The only remaining question relates to the supposed lien .' for freight and charges. Some disaster happened to the pus- - ty Miller after she sailed from Norfolk, on account of which an average was charged on the lead. This constitutes, the principal item, the freight amounting to less than fifteen dollars. Under the circumstances of this case, it may be doubted whether Collins had any lien for this average—his conduct at Norfolk not' having been justifiable. But waiving that question, how has the lien of Collins been transferred to the defendants ? The general doctrine on this subject is, that liens are personal, and cannot be transferred. The party may however deliver'the property to another, with notice of the lien, to hold it as his servant or bailee, and then the lien will accompany the goods; but it is quite clear that a lien 'will not pass by a tortious act, such as selling or pledging the goods. Coffin fy Cartwright, in the action against them, were regarded as the mere servants or agents of Collins, and as such they might assert the lien ; but here- the defendants claim as purchasers, and acquire all the right they have from a tort feasor. I know of no principle ■ on which they can set up a lien. McCombie v. Davies, 7 East, 5. Ingersoll v. Van Bokelin, 7 Cowen, 680. But if the défendants had a lien, they waived it by not putting themselves upon that ground when the property was demanded by the plaintiff’s agent. They claimed the property as purchasers, and said they would do nothing about it. They denied the plaintiff’s right, and set up a title in themselves independent of the *479lien. Under such circumstances, a tender of the freight and charges was unnecessary.
It does not appear on what particular ground the plaintiff. was nonsuited ; but I have been unable to discover any valid objection to the action.
Judgment reversed.