Foot v. Morgan — 1 Hill & Den. 654

Majority

p. 654

Foot vs. Morgan.

Headnote

A justice of the peace whose wife is the sister of A.’s wife, cannot take jurisdiction of a cause in which A. is the plaintiff in interest, though prosecuted in the name of another; and if he render judgment therein, it may be treated as absolutely void.

Such relationship between the plaintiff and a juror, constitutes a ground of challenge for affinity.

And if the sheriff is thus related to the plaintiff, it is cause for challenge to the array.

Justice’s jurisdiction—affinity to the party. A motion was made to set off a judgment in favor of the defendant, obtained in the name of H. M. in a justice’s court, against a judgment rendered- in favor of the plaintiff in this court. The motion was opposed on the ground that the justice’s judgment was void for want of jurisdiction; and an affidavit was produced showing that Morgan, the now defendant, was the real plaintiff before the justice, and was related to the justice; • the said Morgan and the justice having married sisters, and both their wives being alive at the time of the commencement of the suit before the justice and the rendition of the judgment therein. It appeared that Morgan recovered the judgment before the justice in the name of H. M. his brother, but that the brother had no interest in it.

M. T. Reynolds, for the motion.

David Wright, contra.

It was said by counsel in behalf of the motion, that a party and juror having married sisters, would be no cause of challenge: but I presume hastily; for it is put among the commonest cases in the books, as an instance of affinity which disqualifies. It was holden very early, on writ of error to parliament, that the sheriff’s wife being sister to the plaintiff’s wife, was good cause of principal challenge to the array. (Markham v. Lee, cited in Mounson and West’s case, 1 Leon. 89. Vid. Cain v. Ingham, 7 Cowen, 478, 9, and especially the note

p. 655

to that case.) The same thing is mentioned as the cause of1 challenge to a juror. (Tr. per pais, 188, Land. ed. of 1766. 2 Rol. Abr. 654, pl. 17, S. P.) By 2 R. 8 . 204, 2d ed. § 2, no judge can sit who is of such affinity to either party that he might be challenged as a juror; and the statute extends to a justice sitting on the trial of a civil cause. (Edwards v. Russell, 21 Wend. 63 .) The judgment rendered by him is there said to be void. It is coram non judice, and may be questioned collaterally. There can be no doubt that the statute extends to the party beneficially interested, as .well as the real party. The objection to the set-off is fatal, and the motion must be denied.

Rule accordingly.

Cases cited

Edwards v. Russell 21 Wend. 63 N.Y. Sup. Ct. p. 655