| Court for the Trial of Impeachments and Correction of Errors | May 15, 1845
The defendant in error has made several points on which he relies to sustain the judgment of reversal of the justice’s -judgment. 1. That it was error, because the suit was tried by only four jurors. The statute (2 R. S. 243, § 95,) enacts that “ the parties may agree upon any number of jurors less than six to try the cause; and the justice shall direct in the venire the summoning of so many jurors as shall be double the number so agreed on.” Whether the parties agreed on the number of four jurors to try the-cause before the venire was issued, or whether it was issued to summon eight jurors according to the provision of the statute in such cases, does not clearly appear by the return of the justice; I infer, however, from the return, that the agreement was made for a trial by four instead of six at the time the jury was being called by the justice. But it was sufficient if made at that time. A party cannot be permitted to avail himself of such an objection after trial. If any thing, it was an irregularity which it was competent for the parties to waive, as they did in this case.
2. It is insisted that the justice was disqualified from sitting to try the cause by reason of his affinity to the plaintiff. The statute (2 R. S. 275, § 2) enacts that “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.” The statute extends to a justice sitting on the trial of a civil cause. (Edwards v. Russell, 21 Wend. 63.)
Affinity is defined to be, “ the relation contracted by marriage between a husband and his wife’s kindred, and between a wife and her husband’s kindred, in contradistinction from consanguinity, or relation by blood.” The affinity which is a ground of principal challenge to the array, must be a subsisting affinity at the time of the challenge. In this case the widow of the justice’s brother, who became the wife of the plaintiff’s brother, was proved to be dead, and there was no evidence that there was issue of the marriage.
It has been adjudged, that “ It is no principal cause of challenge to a juror that he hath married the party’s mother, if she be
The remaining point raised is, that the evidence did not sustain the action. There was evidence on both sides fit and proper for the consideration of Jhe jury. The verdict is not entirely unsupported by evidence. The judgment of the justice should not have been reversed on the ground that there was no evidence to support the verdict. (Noyes v. Hewett, 18 Wend. 141; Baldwin v. Delevan, 2 Hill, 125.)
The judgment of the common pleas must be reversed and that of the justice affirmed.