Graydon v. Stone

1 Edm. Sel. Cas. 221

• Court: New York Circuit Court
• Decided: March 14, 1846
• Status: Published

Opinion

The Circuit Judge :

I am of opinion that the plaintiff is entitled to recover. The money was collected by the defendant, colore officii, and he has no right to withhold it from the plaintiff. (People v. Dunning, 1 Wend. 16; Walden v. Davison., 15 id. 575.) Having treated the process as valid, for the purpose of collecting the money for the plaintiff, from his debtor, he cannot now have a right to treat it as invalid, and withhold the money from the plaintiff.

Besides, with a full knowledge of the error, and when he was in custody on the attachment, from which, on the principle of People v. Dunning, he could not have been discharged, he promised to pay the money. His collection of the money, and the agreement of the plaintiff to discharge him from custody, constitute an abundant consideration for his promise, and it must be performed.

Judgment for the plaintiff.