64 F. 88 | N.D.N.Y. | 1894
It was admitted at the trial, and the admission is reiterated in the defendant’s brief, that the money found on Atwood was not identified as having been taken from the post office at Whitesboro. The court is, therefore, unable to discover by what right or title the defendant assumes to retain this money. There is not a particle of proof that it is the money that was stolen, or that the defendant holds it pursuant to any legal process. The defendant has it and proposes to keep it if it can. Ho much is clear, but the reasoning by which it is sought to justify this proceeding is not clear. The argument seems to be that, because the defendant has lost money through Atwood’s burglary, it can reimburse itself, without process of law, from any property found in Atwood’s possession. This will not do. The proposition pushed to its logical conclusion would enable the defendant to seize Atwood’s watch or even his doilies, sell them, and apply the proceeds to the extinguishment of the debt. At the time of the assignment to the plaintiff the defendant had not even the possession of the money; it was in the hands of the; inspector. The assignment transferred the money to the plaintiff and gave him a good title, certainly as against the defendant, who has no title at all. The plaintiff: is entitled to judgment as demanded in the petition.
