By the Court.
Denio, Ch. J.I am of opinion that the evidence was sufficient to make out a prima facie case against both the. defendants, so far as related to the question of the seizure of the property. The defendants were both active in obtaining the judgment against Boosa, and although Clearwater alone gave the direction for seizing the horses and wagon, he should be presumed, in the absence of evidence to the contrary, to have been acting in conjunction with the other defendant in a common enterprise of collecting their joint debt by a seizure of the property in question. Although the commission of a trespass was not within.the scope of the partnership enterprise, the collection of the joint debtwas a, part of that business. The direction to levy the execution upon a particular subject was an incident to the obtaining payment of the debt by legal process, and when one of the partners was found acting in that undertaking, the presumption is that he had the countenance and assent of the other partner.,
*344The plaintiff’s mortgage being the earlier title, would have enabled the plaintiff to recover, unless it was shown to be fraudulent. There was no evidence of fraud except the releasing of possession by the mortgagor, but the evidence offered ■and excluded would have had a tendency in that direction, and should have been received if the defendants were in a position to justify, as judgment creditors to Roosa.
This brings up the question principally argued, whether the justice’s judgment was void on account of the relationship between the justice and plaintiffs in the action in which it was recovered. If it was erroneous merely, and not wholly void, it would clothe the defendants with the character of judgment creditors of Roosa, and enable them to contest the honafides of plaintiff’s mortgage; but if it void, defendants would be only creditors at large, and the mortgage lien being valid between the parties, the defendants would be trespassers in seizing the property.
The statute declares that “ no judge of any court can sit, as such, in any case in which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties.” 2 R. S. 275, § 2.
It is not denied that a juror who was first cousin to one of the parties, would be excluded by reason of consanguinity, nor that Justice Elmendorf erred in sitting as a judge in the action between the defendants and Roosa.
Arguments have been drawn from the strong language employed by the legislature, which in terms positively forbids a judge, in the position which Elmendorf occupied, from sitting as such ; from which it is reasonably argued that where he attempts to do so he is not to be regarded as possessing a judicial character, but as being only a private individual, and that the proceeding's are to be considered coram non judice. On the other side are adduced the cases of judicial acts contrary to positive law, which are yet held to be valid when produced for a collateral purpose, and impeachable only by a direct proceeding, in which they are subjected to a review.
It may 'be- conceded that, if there were no more direct authority, the present question might involve some doubt. I am *345.of opinion that it has been settled by authority which we are bound- to follow.
In Oakley v. Aspinwall, 3 N. Y. 547, one of the then judges of this court was found to have taken part in the decision of that case though he was distantly related to one of the defendants. The case was decided by the concurring vote of five judges, of whom he was one. The party to whom he was thus related was shown to have no real interest, being fully indemnified by the actual parties in interest to the litigation. He sat in the case at the request of the other party, who afterward questioned the judgment on the ground that he had done so. On a motion to vacate the judgment and the remittitur on that ground, the court held that the judgment was not simply erroneous, but utterly void. It was not denied but that the consent would have cured the error, if there had been jurisdiction ; in other words, if it were only error; but it was considered that it was void in the most absolute sense which can be expressed by that term. In the leading opinion prepared by Judge Hurlburt, it was said: “ The exclusion wrought by it [the statute] is as complete as is in the nature of the case possible. The judge is removed from the cause and from the bench; or if he will occupy the latter, it must be only as an idle spectator and not as a judge. He cannot sit as such. The spirit and the language of the law are against it.”
It is argued that the occasion upon which this decision was made was not one in which the judgment was sought to be availed of collaterally, as in the present case, but it partook rather of the nature of a review; and that is true. But the situation of the "question was the same. If any judgment in which the disqualified judge took part could possibly be valid for any purpose, that judgment could have been sustained. The consent which induced and procured the judge to sit would have made the judgment perfectly valid if, under any possible circumstances, it could be made valid. Mr. Broom, in commenting on the maxim, “Consensus tollit errorum,” says, “The maxim is essential to distinguish a proceeding which is merely irregular from one which is completely defective and void. In the latter case the proceeding is a nullity and cannot be waived by any laches or subsequent proceeding of the opposite party.” *346The reason, upon which judgments palpably illegal and erroneous will yet furnish a justification to parties excecuting process under them and will be held valid in all collateral proceedings, is that the party affected by them has waived his rights. The waiver, in most cases of this kind, is tacit, and consists in an omission to appeal or bring a writ of error. The defendant is, therefore, held to have consented that the judgment may stand. But if, when he expressly consents, by his counsel, in the most formal and authentic manner, it is yet not held valid, the matter must be one in which no consent will avail. It must, in short, be void; and this court must be held to have determined, in the case referred to, that a judgment attempted to be rendered by a judge, who is disqualified by reason of consanguinity with one of the parties, is void in the most extreme sense known to the law, and, therefore, entirely incapable of being made good by any omission:, waiver, or express consent. I think this is so, upon principle as well as authority. If one, who has not just pretense of possessing the character of a judge, should summon a party before him at the instance of another, and assume to render a judgment between the parties, no one would insist that it would be valid for any purpose. It would, of course, be utterly void; and would furnish no justification to any one. If it be true, as I think it is, and as the judge who sat on the motion in Oakley v. Aspinwall decided, that one prohibited by the statute from sitting as a judge, is to be regarded as not being a judge at all, nor entitled to occupy the bench under any circumstances, except as a spectator, it is the same thing as though he had never been raised to the judicial office. His being entitled to sit as a judge in cases to which the disqualification did*not apply would not aid him in any degree in cases to which the disqualification attached.