The plaintiff, by his assignment, acquired no right of action against the defendant to recover back the money paid by his assignor. His assignor might have had the erroneous judgment and sentence against him reversed and vacated, upon certiorari from the court of sessions of the county, had he seen fit to pursue that remedy. (Sess. Laws of 1859, ch. 339.) The judgment was clearly erroneous and voidable, .the fine by way of punishment having been much larger than the defendant, as a court of special sessions, had a right to inflict. But it was not void absolutely. The defendant, at the time the judgment was rendered, and the erroneous punishment inflicted, was acting as a court of special sessions, and had jurisdiction of the person of the plaintiff’s *71assignor, and of the offense with which he was charged. The assignor had been regularly arrested, and examined before the defendant as the examining magistrate, and had elected to be tried before him as a court of special sessions. After the commencement of the trial, he pleaded guilty, and it thereupon became the duty of the defendant to render judgment against him, and to inflict the punishment prescribed by statute. (2 B. S. 714, § 19.) In the case of Butler v. Potter, (17 John. 145,) the court laid down the rule that, “where the justice has no jurisdiction whatever, and undertakes to act, his acts are coram non judice; but if he has jurisdiction, and errs in exercising it, then the act is not void, but voidable only.” That was an action brought against a justice of the peace, who had rendered a judgment against the plaintiff, for a larger amount of costs than the statute authorized, upon a confession of judgment by the latter, before the defendant, as such justice. The plaintiff had been imprisoned on the execution issued upon the judgment, and brought his action for trespass and false imprisonment, and it was held that the action could not be maintained. This has been followed, steadily, in this State in a great number of cases, only a few of which will be here cited. (Horton v. Auchmoody, 7 Wend. 200. Weaver v. Devendorf, 3 Denio, 117. Swift v. City of Poughkeepsie, 37 N. Y. 511.) Indeed this has always been the common law rule. (Prigg v. Adams, 2 Salk. 674.) In Horton v. Auchmoody, (supra,) the court say: “Where a justice acts without acquiring jurisdiction, he is a trespasser; but, having jurisdiction, an error in judgment does not subject him to an action; he is entitled to the protection afforded to a judge of a court of record.-” In every such case, the principle of judicial irresponsibility protects the magistrate. It would be mere ostentation to-cite the numerous authorities tobe found in the books, in support of a principle so well established.
The counsel for the appellant argues that the fine im*72posed, having been so glaringly in excess of that which the defendant was authorized by statute to inflict, was as much without authority or jurisdiction as would have been a sentence that the person convicted should be hanged, or imprisoned in the state prison. But this is a confusion of ideas and principles essentially and fundamentally different. The latter sentence would have been a nullity, because the magistrate had no power or authority to inflict any punishment of that kind or quality. He had no such power ever conferred upon him, which he could exercise in any manner or degree. But, he had authority to inflict a fine, and erred in the exercise of it, in measure or degree only. And this I understand to be the true distinction between the acts of an inferior magistrate, which are ooram non judiee and void, and those which are erroneous and voidable, merely. In the latter case, such magistrate is sheltered and protected by the shield of judicial irresponsibility; in the former, not.
It is also argued in behalf of the plaintiff, that even if the defendant would not have been liable in an action of trespass for false imprisonment, had the plaintiff been committed for non-payment of the fine, still he had no authority to receive the money, the fine being thus excessive ; and that the defendant cannot be regarded as having acted in his judicial capacity, in receiving such a fine, which he had no authority to impose. This position is as unsound as the other, and for the same reason. If the judgment and sentence were voidable only, the defendant is protected in the execution of such judgment, in every stage, until it is avoided by reversal. The statute requires the magistrate to receive all fines imposed by him, if paid before commitment, and to pay the same, after deducting the sum allowed for costs and charges, over to the county treasurer for the use of the county, within thirty days. (2 B. S. 716, § 32.) The money had been duly paid over to the county treasurer before the assign-*73merit to the plaintiff. The case shows that the defendant acted in good faith, throughout, supposing he was only discharging his duty as a magistrate. The judgment having been valid until reversed, and the money paid by the party convicted to avoid being imprisoned, in execution thereof, the defendant must be deemed to have received it in his judicial capacity, to and for the use of the county, and the action will not lie to recover it of the magistrate through whose hands it passed into the treasury of the county. The judgment must therefore be affirmed.
[Fourth Department, General Term, at Buffalo, June 6, 1870.Mullin, P. J., and Johnson and Talcott, Justices.]