Post v. Black
New York Supreme Court
Error to the Chenango common pleas. Black recovered a judgment against Post before a justice of the peace in an action of trespass. The latter brought a certiorari to the court of common pleas, and among other matters in the affidavit upon which the certiorari was allowed, it was stated that the plaintiff and the justice were related.
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Error to the Chenango common pleas. Black recovered a judgment against Post before a justice of the peace in an action of trespass. The latter brought a certiorari to the court of common pleas, and among other matters in the affidavit upon which the certiorari was allowed, it was stated that the plaintiff and the justice were related. In the return the justice, after he had answered the other parts of the affidavit, stated that he and the plaintiff were second cousins, but that nothing was said upon that subject on the trial. The common pleas affirmed the judgment of the justice.
1Opinion of the Court
By the Court, McKissock, J.
No judge can sit in any cause in which he is a party, or interested, or in which he would be excluded from serving as a juror on the ground of affinity or consanguinity to either of the parties. (2 R. B. 275, § 2.) *67In this case, if the relationship be considered established, the justice was incompetent to serve as a juror, and consequently was disqualified from presiding as a judge at the trial. (Foot v. Morgan, 1 Hill, 654; Edwards v. Russell, 21 Wend. 63.)
The important question, however, is whether the relationship appears in such a manner as to be regarded by the…
2Cases cited2 opinions
- Edwards v. RussellNew York Supreme Court · 1839
- Ex parte Williams v. Albany Mayor's CourtNew York Supreme Court · 1835
3Cited by6 opinions
- Hewitt v. FollettWisconsin Supreme Court · 1881
- Clark v. Van VranckenNew York Supreme Court · 1855
- Schoonmaker v. ClearwaterNew York Supreme Court · 1863
- Place v. Butternuts Woolen & Cotton Manufacturing Co.New York Supreme Court · 1857
- Snow v. HardySupreme Court of Minnesota · 1859
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