Churchill v. Churchill

| Vt. | Aug 15, 1839

The opinion of the court was delivered by

Collamer, J.

— The jury, by their verdict] for the defendant, must have found there had been no property taken and no unnecessary force used by him. In relation to bail having been refused, it appears there was some testimony tending to show he said he should take no bail, but there was no proof that any was offered him. The decision of the court, that this was insufficient, seems entirely reasonable; but it was of no importance, as refusing bail would not have rendered the defendant a trespasser. It would have been a nonfeasance, not a malfeasance rendering the officer a trespasser ab initio. Nothing but case could be sustained. 2 Saund. R. 61, note 5._ 1 Chitty’s Plead. 137, 186.

jTAn officer is always protected when he serves a process, issuing from competent authority, or more properly, when from the face of the precept the officer cannot perceive a want of jurisdiction. In this case the officer served a writ issuing from a court having jurisdiction generally to issue such process, and this appears by the plea. If the plaintiff would have either a verdict or a judgment against the defendant, as a trespasser, she must show that, in this instance, the court had not such authority, and that this was apparent upon the precept. This was neither pleaded nor proved byjieñ\

£a man is, by affinity, related to all the consanguinei of his wife. The juror’s wife’s father was cousin to the defendant ; so the juror was, by affinity, second cousin to the defendant. That this degree of relationship would have disqualified the juror or been good ground of challenge in England is quite clear. But having the blood of a common ancestor, or the clan of relationship, is hardly of as much regard or importance here as under the feudal system, or in an early and imperfect government; and the excluding of relations to the ninth degree, reckoned even according to the canon law, would be, here, greatly inconvenient. This, however, as a part of the common law, we are bound to follow, unless we find some clear indication of the legislative will to the contrary. By our statute, judges of the courts within the fourth degree of affinity or consanguinity to either of the parties are disqualified. (Stat. vol. 1, page 117.) Justices of the peace are disqualified only within the fourth degree. It seems unreasonable to hold that a juror, who is but a branch of the court, should be excluded for that which would not affect the courtj judge or justice. We consider that the le-' gislature have, in effect, said that the relationship only, which is to be regarded in our courts, is a relationship within the fourth degree. The next question is, how are these degrees to be reckoned ? By the canon law, which is the English law of descent, men were considered as near related to each other as they were to their common ancestor, and, therefore, the number of degrees, the most distant from the common ancestor, was their degree of relationship. This canon the Romish church had much interest in preserving, as it increased the circle of matrimonial prohibition and brought revenue for dispensations. By this rule this juror was, by affinity, related to the party within the third degree, as from the grandfather of the juror’s wife, the common ancestor, to his son, the grandfather of the defendant is one degree; to the defendant’s father is two degrees, and to the defendant, the most distant from the common ancestor, is three degrees. But, in settling the degree of relationship, in this state, we must bo guided by our law of descent. Our state, in common with most of the sister states, early discarded the feudal canon of descent, not only its primogeniture, but its canon of computing the degrees of relationship. The statute of Charles II, commonly called the statute of distribution, has been copied almost literally, in this state, not only as the rule of distribution of personal property, but as the rule of descent in real estate. In adopting that statute, we adopted the construction it had received, which was, that in computing degrees of relationship, in ascertaining the next of kin, it should be done by the rule of the civil law, and the half blood be included. By this law two men are considered related to each other only in that number of degrees which exists between them, to be counted by reckoning from one up to their common ancestor, and then down to the other. Reckoned in this manner, the juror was, by affinity, related to the defendant only in the fifth degree, and, therefore, not disqualified to try the cause either as judge or juror.

Judgment affirmed.