The important question in this case is whether the defendants were not entitled to the protection of the statute which required the suit to be brought within their own county. And this depends upon the question whether the act, to wit, the assessment of the plaintiff’s lands, was an act done virtute officii or colore officii. Where the act of an officer is of such a nature that.his office gives him no authority to do it, he is not protected; but where, in performing an act within the scope of his authority, he commits an error, or- even abuses the confidence which the law reposes in him, he is still entitled to the protection of the statute. It is somewhat difficult to preserve the distinction, and the cases consequently are conflicting and cannot all be reconciled.
The farm assessed was situated partly in Plainfield, Otsego county, and partly in Winfield, Herkimer county, and the plaintiff, as the proof stands, was properly taxable in the latter place. As to the land lying in Plainfield, the defendant plainly had jurisdiction of the subject matter, and the point for them to de*422termine was where the defendant resided. It must be conceded even on the evidence in this case, that this was by no means so clear a matter; and in determining it, the assessors acted judicially. And when acting judicially, within the scope of their authority, although they err, they are not liable to an action. ( Weaver v. Devendorf, 3 Denio, 117. Vail v. Owen, 19 Barb. 22.) It seems to me a monstrous injustice to hold, that where the law casts upon the assessors a duty to perform, and they exercise a judicial function in determining the questions committed to them, they are still liable to a prosecution if it turns out that they mistook that duty, or erred in its performance. The case of Prosser v. Secor, (5 Barb. 607,) which holds assessors liable where they assessed a minister of the gospel, is directly in conflict with Weaver v. Devendorf, (3 Denio, 117;) and I prefer the authority of the latter case, while the reasons upon which it is founded seem to me most consonant with what strikes me as the justice of the case. “ The assessors,” say the court, “ were judges acting clearly within the scope of their authority. They were not volunteers, but the duty was imperative and compulsory, and acting as they did in the performance of a public duty in its nature judicial, they were not liable to an action, however erroneous or wrongful their action may have been.”
[Jefferson General Term, April 7, 1857.The case of Van Rensselaer v. Cottrell, (7 Barb, 127,) is founded on the same principle, and holds that where lands are situated within the town'in which the assessors reside, they have jurisdiction of'the subject matter, and however they may err in the performance of their duty respecting its assessment, the error may be corrected in a court of review, but will not render their proceedings void. (See also Van Rensselaer v. Wit-beck, 7 Barb. 133.)
Public officers have responsibilities enough to encounter without unduly straining a point to attach a liability where the law casts a duty upon them which in good faith they attempt to discharge. I think the judgments of the justice and of the county court should both be reversed. Judgments reversed.
Hubbard, Pratt, Bacon and W. F. Allen, Justices.]