Higbe v. Leonard

1 Denio 186

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: May 15, 1845
• Status: Published

Opinion

jBy Z/te Court, Jewett, J.

“ No judge of any court can sit as such in any cause, to 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 has been held by this court that the statute extends to a justice of the peace sitting on the trial of a civil cause. (Edwards v. Russell, 21 Wend. 63; Foot v. Morgan, 1 Hill, 654.) Consanguinity is not pretended' between the justice and either of the parties, but it is insisted that there is an affinity by marriage between the plaintiff and the justice, which disqualified him, and such as would have excluded him from being a juror between the parties to this suit. The record shows, that two brothers of the justice intermarried with two sisters of the plaintiff, and that all were living. “• Affinity,” according to Gibs. Cod. 412, (1 Bl. Comm. 435, note (9) by Christian,) “ always arisesby the marriage of one of the parties so related. A husband is related by affinity to all the consanguinei of his wife, and vice versa, the wife to the husband’s consanguinei ; for the husband and wife being considered one flesh, those who are related to the one by blood, are related to the other by affinity.” “ But the consanguinei of the husband are not at all related to the consanguinei of the wife.” If this rule be correct, and I think it is, although the justice was related by affinity to ¿he two sisters of Higbe the plaintiff, there was no such relation between him and Higbe. The judgment of the common pleas must be reversed, and that of the justice affirmed.

(a)

Ordered accordingly.

See Carman v. Newell, (ante, 25.)