Hibbard v. Odell

[635] By the Court Paine, J. It appeared on the trial before the justice, that he was father-in-law to one of the plaintiffs who had married his daughter. And the defendant moved to dismiss the case upon that ground. We have no doubt that the justice was “ near of kin” to his son-in-law within the meaning of section 48, chap. 120, R. S., which provides that when it shall appear that the justice is near of kin to either party, he shall remove the case to some other justice of the same county. The word “ kin”, in its strictest sense, includes only relations by blood; but in a general sense it is used to include both relations by blood and marriage, and in this sense the objects of this provision of the statute evidently require it to be interpreted. We are also of the opinion that, that portion of the section relating to this point is not qualified by that which precedes it; and therefore that it is not necessary that this fact should be made to appear by the affidavit of the opposite party, nor that it should appear before joining issue. The fact was evidently known to the justice here before joining issue, and he should have removed the case on his own knowledge. But if in any such case, he should not know the fact until after issue is joined, he should decline to proceed with the case whenever he ascertains it, and remove it according to the statute. If he does not, his judgment must be reversed. Foot vs. Morgan, 1 Hill, 654; Edwards vs. Russell, 21 Wend., 63; Oakley vs. Aspinwall, 3 Coms., 547. The judgment of the circuit court is reversed, with costs.