The .single question upon which this action turns, and presented for our consideration, is whether the judgment in the creditor’s suit of Langmaid against the plaintiff protects the defendant in delivering to the receiver appointed in such suit the land warrant held by him belonging to the plaintiff Welles. The judgment and proceedings in that suit having been set aside, the question is whether while it remained in force it was any protection for acts done upon its authority.
The plaintiff claims that it was a void judgment — of no force or validity whatever, and that all persons concerned in executing it are trespassers.
In The Chemung Canal Bank v. Judson, (4 Seld. 254,) the rule in respect to void judgments is so stated by Judge Buggies, referring to Elliott v. Piersol, (2 Peters, 328-340.)
But the rule as there stated in respect to void judgments must be qualified in respect to ministerial officers acting in the execution of the process, valid upon its face and issued out of a court of general jurisdiction, and who have no notice of the invalidity of the judgment.
A judgment may be void as to the parties and valid to protect ministerial officers — when the court issuing it had jurisdiction of the subject matter, and nothing appears on the face of the process to apprise the officer that the court had not also jurisdiction of the person. (Savacool v. Boughton, 5 Wend. 170. 5 Hill, 440. 2 N. Y. Rep. 473. 2 Denio, 86.)
But the judgment in Langmaid v. Welles was not absolutely void. The court clearly had jurisdiction of the subject matter, and the requisite steps had been taken by obtaining an order from a judge to publish the summons as against nonresident debtors, according to the provisions of section 135 *394of the Code, to acquire jurisdiction of the person. The order, proper in form, was made by the county judge, and it was duly published. The affidavits presented to the county judge and on which the order was based, certainly tended to establish the required jurisdictional facts to authorize him to make the order, and if he erred in his decision upon such evidence, it was a judicial error which might be reviewed and rectified upon appeal or on motion to set aside the order and proceedings, but could not be questioned in a collateral proceeding.
Such is clearly the rule Avhen the proof presented to a judicial officer to make out the preliminary jurisdictional facts essential to be established as the basis of an order or process which he is. authorized to grant or issue, has a legal tendency to make out the case required by the statute. A mistake or error of judgment or opinion in passing upon the force and Aveight of such evidence does not render the order or process issued void, but sinpfiy irregular and erroneous. If no evidence be offered or presented to the officer tending to prove the requisite jurisdictional facts in such case,, then the order made would be absolutely void and no justification of the subsequent proceedings. (Miller v. Brinkerhoff, 4 Denio, .120. Skinner v. Kelly, 18 N. Y. Rep. 356. Van Alstine v. Erwin, 1 Kern. 340.)
But this judgment in Langmaid v. Welles having been set aside upon the ground of the insufficiency of. the proofs made to the judge as the basis of the order for the publication of the summons against Welles, as a non-resident, it has ceased to be of any validity for any purpose, so as to protect any parties for acts done under it except mere ministerial officers upon the principle above stated. The court has in. effect decided that it never had acquired any jurisdiction of the person of the defendant Welles, and could not therefore render any valid judgment to affect him or his rights. All acts based upon the judgment are therefore void, except as above mentioned,
*395It follows, I think, from these principles, that this judgment constitutes no justification or protection for the defendant. He was not a ministerial officer, nor was he a party to the suit so as to be bound by the judgment. He was a simple bailee of the land warrant in question, and was bound to keep it for his bailor.
Nothing will excuse a bailee from the duty to restore the property to his bailor, except that he can show that it was taken from him by due process of law, or by a person having the paramount title, or that the title of his bailor has terminated. (Bliven v. Hudson River R. R. Co., 35 Barb. 191. Burton v. Wilkinson, 18 Verm. R. 186. Story on Bailm. §§ 120, 264 and 582. Bates v. Stanton, 1 Duer, 79, 85.)
If the defendant had been a party to the suit and been required by judgment or order to transfer the land warrant to the receiver, that would have .protected him; but when he voluntarily gave it up to the receiver, he assumed the legality of the proceedings in that suit and is bound to show their legality, for his protection. Before he gave up the warrant to the receiver, I think he should have assured himself that the judgment was a valid one, and such as would afford him a complete justification. He knew that Welles was absent from the country, and that no process could have been served upon him, and I think that he was bound to see that the plaintiff in that proceeding had obtained a valid judgment. In assuming to give up the warrant on request, without any order or judgment binding upon him, he undertook to affirm the legality of the proceedings. In Bliven v. The Hudson River R. R. Co. (supra,) Judge Emott says: “ It is true that if the goods are taken from the bailee by the authority of the law, exercised through a regular and valid proceeding, it will be a defense to an action by the bailor. The bailee must assure himself and show the court that the proceedings are regular and valid.” Such, I think, must be the rule whenever the bailee voluntarily gives up the goods. When they are taken from him by legal pro*396cess, he must show that it was upon process regular and valid ' upon its face. He is not bound t.o resist a public officer having valid process against the goods. But if he complies with any other demand or claim by virtue of legal proceedings not against himself, he must do it at his peril. He must see that the claim or proceeding is a valid one, and he must maintain the validity of such claim, to make out a defense or justification against Ms bailor.
[Monroe General Term, December 4, 1865.Hiving up this warrant to the receiver was giving it up voluntarily. In Scrantom v. The Farmers and Mechanics’ Bank of Rochester, (24 N. Y. Rep. 426,) the bank yielded to the demand of the receiver and paid over the moneys without suit. This was held no protection to him. Judge Sutherland said: “ It is doubtful whether the bailee has a right to yield to regular legal joroceedings without defending .or notifying the bailor of such proceedings.” I think he may yield to such proceedings without suit, if satisfied of their regularity, and willing to assume the risk of their validity. At least he must show their validity, if he give up the property without a suit against him, or a binding judgment or order as upon supplementary proceedings.
If these views are concurred in by my brethren,, the judgment in this action must be reversed, and a new trial granted, with costs to abide the event.
Judgment reversed.
Johnson, J. G. Smith and E. D. Smith, Justices.]