2 Denio 643 | N.Y. Sup. Ct. | 1846
The proof leaves it some-
what uncertain where and when the books were to. be delivered. But assuming that they were to be delivered at the. defendant’s office in Farmerville on demand, it was not indispensable to a right of action that the demand should be made at that place. Property may be demanded of a bailee wherever he may be at the time, and although he is not bound "to deliver it at that place. And then if the bailee answer that "he is" ready to deliver at the proper place, there will be no breach of his duty. But if he deny the right of the bailor, and refuse to deliver the property at all, there could be no use in making another demand, and the bailee will be answerable in the proper action. (Scott v. Crane, 1 Conn. 255; Higgins v. Emmons, 5 id. 76; Slingerland v. Morse, 8 John. 474; Mason v. Briggs, 16 Mass. 453; 2 Kent. 508.) Now here, although the demand was made at Ovid, if the defendant’s answer was that he would not'give up the books, that was a full denial of the plaintiff’s right, and no further demand could be necessary. If the answer was, , that he had not got the books, that would make a more doubtful case. But as the defendant" did not intimate that he had lost the books, or that any thing had happened to discharge his obligation as a bailee, the answer involved a denial of the bailment
But the evidence which the defendant offered for the purpose of showing a want of jurisdiction in the court martial which imposed the fine was improperly rejected. Process which issues from a court of competent jurisdiction, and which is regular upon its face, will be a sufficient protection to the officer who executes it, although the court did not acquire jurisdiction in the particular case. And possibly the rule may be carried far enough to protect the officer in a case like this, where the defendant proposed to show that the court had not been duly organized. But the rule can never be carried beyond protection. Regular process is a shield in the hands of the officer: but it is not an instrument of assault. When the officer is sued, the process will be a sufficient defence but when he sues, and attempts to build up a title under the process, he must show a good judgment, or regular proceedings, as well as regular process. (Earl v. Camp, 16 Wend. 562; Horton v. Hendershot, 1 Hill, 118.) When there is a defect of jurisdiction, or the proceedings are void for any other cause, it is going far enough to shield the officer under his process. There is no principle upon which he can be allowed to sue, and recover money for the benefit of the creditor or any other third party. If the court martial was not duly organized, the plaintiff was not obliged to execute its orders, and he will not be liable to an action for omitting to collect the fine. In bringing this suit, he is not acting upon the defensive ; but he is attempting to recover money for the benefit of some third person: and a recovery would not only be for the use of a party who ought not to receive, but it would be against a party who ought not to pay. On this point the judgment of the justice was erroneous, and it has been properly corrected by the common pleas.
Judgment affirmed.
