Higbe v. Leonard — 1 Denio 186

Majority

p. 186

Higbe vs. Leonard.

Headnote

Although a husband is related by affinity to all those to whom his wife is related by blood, and on the other hand the wife is of affinity to all her husband’s blood relations, yet the consanguinei of the husband are not at all related to the consan guinei of the wife.

Hence, in a suit in a justice’s court, where the brother of the justice was the husband of the plaintiff’s sister, it was held that the justice was not disqualified from taking jurisdiction of the cause.

Error to the Chemung common pleas. Higbe sued Leonard before a justice of the peace in assumpsit, and the defendant pleaded non-assumpsit. After a trial before the justice, he rendered a judgment for the plaintiff for $18 damages, and costs. Leonard brought a certiorari to the common pleas, and assigned for error in fact, that a brother of the justice had intermarried with a sister of the plaintiff, and that another brother of the justice had intermarried with another sister of the plaintiff, it being alleged' that such marriages had taken place before the commencement of the suit before the justice, and that the persons so connected were still living. The plaintiff put in a joinder, in millo est erratum. The common pleas reversed the justice’s judgment for such alleged error.

p. 187

N. W. Davis, for the plaintiff in error,

cited Pierce v. Shel don, (13 John. R. 191;) Eggleston v. Smiley, (17 id. 133 ;) Foot v. Morgan, ( 1 Hill, 654 ;) Coxe’s Rep. 46; 7 Cowen, 479, note (a).

Cr. /S'. Camp, for the defendant in error,

cited 2 R. S. 275, §2; Edwards v. Russel, ( 21 Wend. 63 ;) Foot v. Morgan, supra; Mounson v. West, (1 Leon. 88;) 2 Bl. Com. 206; 3 id. 363; Co. Litt. 156. (a).

“ 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.^[1]

Ordered accordingly.

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

Cases cited

Edwards v. Russell 21 Wend. 63 N.Y. Sup. Ct. p. 187