McNaughton v. Cameron , 1864 N.Y. App. Div. LEXIS 189 ( 1864 )

By the Court, Welles, J.

Evidence was given, on the trial, tending strongly to show that the plaintiff did not intend to pay the notes held by the defendant, except on condition that Cameron surrendered them, and that Cameron knew it. If that was so, the taking of the money from the table by Cameron, in the manner described by the witness. McQueen, and refusing to surrender the notes, was tortious and wrongful, and no title to it passed to Cameron. Assuming that both of the notes were genuine, and that the plaintiff was justly indebted to the defendant for the amount of them with interest, the latter had no right to seize the money without the consent of the former. He could not take the law into his own hands and pay himself by seizing the money, against the declared will of the plaintiff. If he did so, he became a trespasser, and is liable for its value and interest, in this action. It all depends upon the question whether the title to the money passed to .the defendant. This could not be, unless by the plaintiff’s consent. On this question there was evidence sufficient to submit to the jury, and which should have been so submitted. The learned justice, at the circuit, took the whole case from the jury, and directed a verdict for the defendant. This, in my judgment, was error, for which a new trial should be awarded.

[Monroe General Term, September 5, 1864.

Ordered accordingly.

J. 0. Smith, Welles and 33. Darwin Smith, Justices.]