The point made by the defendants’ counsel, that the board of supervisors could go back of the judgment ; or, in other words, sit in review of a judgment of this court, recovered in a contested action, seemed to me, on the trial, as novel as the proposition once made by a member of the legislature, to amend the Code, so that appeals from the judgments of justices of the peace should be made, to the town meetings in the several towns, where the justices giving the judgments reside; and that the decisions of the town meetings should be final, and be ascertained by a viva voce vote of the electors. Subsequent reflection, and an examination of the statutes and authorities bearing upon the case, have not relieved my mind of this impression.
The judgment is entirely regular and valid on its face against the overseers of the poor of Middletown in their official characters ; but I am asked to pronounce it void, as against the town or county; or, in other words, to hold that the court erred that gave it. And it is assumed that I should do this because the board of supervisors have reviewed it ex parte, or in the exercise of some undefined discretion, ascertained that the court or referee who tried the issues in the action, committed an error, in holding that the ovérseers of the poor of Middle-town, as such, were liable'to pay the demand for which the *54recovery was had. This I cannot do. It will better comport with sound principles to hold, that the only way to avoid an erroneous judgment of this court, recovered on a contested trial, is by an appeal, or by a motion to set it aside.
If the supervisors could go behind the record, and ascertain whether the demand was just or unjust,, legal or illegal, reasonable or unreasonable, they could proceed ex parte, or act upon affidavits or hearsay evidence, and reject or admit such evidence as they pleased; and then refuse to allow the claim: and when called into court to answer for their conduct, they could say to the court, “You have given a wrong judgment, and we have, therefore, disregarded it. Now acknowledge your errors, and award us costs for the information we have given you.” Although boards of supervisors are composed of very intelligent men, the absurdity of such a proposition must be apparent to the most zealous reformer.
The fact that the judgment was entered upon the report of a referee, does not alter the case, or vary its effect. “ The report of the referee upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court.” (Code, § 272.)
It is unnecessary, in determining this action, to hold, that a judgment rendered upon confession, against an overseer of the poor in his official capacity, concludes the supervisors, so they cannot inquire whether the whole or any part of the account on which the confession was made was a county charge. (Gere agt. Supervisors of Cayuga County, 7 How, Pr. R. 255.)
The relator’s request to the board of supervisors, to audit his judgment against the town or county, was sufficient. The board should have ascertained whether it was a proper charge-against the town or county, and then assessed it against whichever was liable to pay it.
The relator should have presented to the board “ a certified copy of the docket of his judgment, or the record thereof, if required by the board.” (2 R. S. 475, § 102.) He presented the original judgment-roll, without' any copy of the docket. *55The original roll was higher evidence than a certified copy; and its production, instead of a copy, was a substantial and sufficient compliance with the statute. (Ex parte Newell, receiver, &c., 4 Hill, 608.) A certified copy of the docket of the judgment was not called for; and a presentation of a certified copy of the roll was expressly waived by the board; and it does not appear that the board refused to levy and collect the judgment because no certified copy of the docket was presented to them. They placed their refusal on other grounds. The defendants should therefore be precluded from now insisting that the relator should have presented to them a certified copy of the docket of his judgment.
If the defendants’ positions are correct, the relator’s judgment is a nullity. The statute forbids the issuing of execution upon such judgment. (2 R. S. 476, § 107; 19 Wend. 50; 11 id. 181; 4 Hill, 138.)
If the supervisors cannot be compelled to assess it upon the town represented by the overseers of the poor, it must remain uncollected ; for the overseers of the poor cannot be made personally liable to pay it by their simple refusal to pay, because they only render themselves personally liable when they refuse to pay moneys in their hands," not specially appropriated, upon judgments recovered, “on account of the liability of their town.” (2 R. S. 474, 475, §§ 102, 105.) And it is conceded, if this judgment was recovered “ on account of the liability of the town,” that the supervisors can be compelled to collect it. It must also be admitted, if the former overseer of the poor of Middletown was liable, in his official capacity, to pay the account upon which "the judgment was recovered, then his successors in office were properly sued for the debt. (2 R. S. 473-475, §§ 92-99; see 7 Wend. 181; 4 Hill, 168; 11 Wend. 181.)
The overseers of the poor are agents of their town, and a judgment recovered against them, as such overseers, binds their town, within principles that may be found in the following cases:—Calkins agt. Allerton, 3 Barb. R. 171; Gelston et al. agt. Hoyt, 13 Johns. R. 561; 1 Duer, 79; 6 Barb. 515; 18 Johns. R. 352; 5 Denio, 299; 5 Esp. N. P. Cases, 56; 1 Paige, *5641; 5 Denio, 497; 2 Doug. 499 ; 4 Tenn. R. 590; 24 Wend. 35, 53.) And it follows, of course, that a judgment binding upon the town cannot be questioned by the board of supervisors, when they are called upon to enforce it according to the statute.
The judgment being conclusive evidence that the recovery was had against the overseers of the poor of Middletown, for a debt contracted on account of the liability of such town, the supervisors, upon the production to them of the record of the ' judgment, should have assessed, levied and collected the pmount of such judgment, with interest thereon to the first Monday in February then next, against the town of Middletown. (2 R. S. 474,475, § 102-107; Avery & Lathrop agt. Slack, 19 Wendell, 50; The Supervisors of Galway agt. Stimson, 4 Hill, 138.)
The statutes above cited show that the supervisors had no discretion in the premises j nor had the overseers of the poor against whom the judgment was rendered, any right to refuse to pay it, provided they had sufficient moneys in their hands belonging to their town, not specially appropriated; and a failure to do so, if they had such moneys, made them person-, ally responsible to the relator for the amount of such judgment and interest thereon. (2 R. S. 475, §§ 104, 105; 4 Hill, 138.)
The defendants’ counsel have insisted that I should refuse to grant a peremptory mandamus, on the ground that the published decisions of this court, as they claim, show the judgment in question to be erroneous; and the cases of Vedder agt. The Superintendents of the Poor of the County of Schenectady, 5 Denio, 564; Holmes and others, overseers, agt. Brown, overseer, 13 Barb. R. 599, and Green agt. Brown, 4 Hill, 558, have been cited to establish such proposition. A short but sufficient answer to all this is, I am not reviewing the judgment as an appellate court, but am only considering it when it collaterally comes in question.
As an off-set to this proposition, I will remark, that an opinion has been furnished me, showing that the first litigation over the account forming the basis of the judgment in controversy, was in an action brought in a justice’s court, by the relator against Sliter personally, who was the overseer of the poor of *57Middletown when the account was made. The justice gave judgment against Sliter on the account. The county court of Delaware county reversed the judgment, on the ground that Sliter was not personally liable; holding that the debt was contracted in his official character, and that the town, or his successor in office, was liable to pay it; and this court, at a general term thereof, affirmed the judgment of the county court. If the relator could now be beaten in this action, he might well complain of the uncertainty of the law. And such a boxing of the judicial compass, in search of justice, without success, would be a reproach to the law, or those who administer it.
Another point made by the defendants’ counsel is, that the return to the alternative mandamus shows that the relator knew this court would reverse his judgment, if it should be brought to a hearing at a general term, on the appeal made by the county superintendents of the poor; and that, knowing such fact, and by fraudulently suppressing the same from the knowledge of the overseers of the poor of the town, and by other fraudulent conduct, he induced them to consent to a dismissal of such appeal. These allegations of fraud are denied by the relator in his pleas; but the position taken is, that the relator must not only deny such allegations, but must also prove them untrue; or the court, under the statute, (2 R. S. 586, § 55,) must regard the same as true, and decide accordingly. I will say nothing about the improbability of the relator knowing what the court would decide, for it seems to me the point is clearly untenable.
It is proper to add, although there is no distinction as to the support of the town and county poor in Delaware county, the judgment in question must be collected of the town, against the officers of which the same was recovered. (2 R. S. 475, § 103.)
The conclusions before mentioned determine the whole case. It therefore becomes unnecessary to examine any other points made by the defendants’ counsel.
I find for the relator on all the issues in the case; and judgment in his favor is ordered against the defendants for costs; and a peremptory mandamus is granted to the relator, com*58manding the defendants to assess, levy and collect the amount of the judgment aforesaid, with interest thereon from the day it was docketed until the first Monday in February, 1857, (unless it shall be sooner paid,) against the town of Middletown, as other contingent charges against such town are assessed, levied and collected.