By the Court,
It is declared by statute 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 rеason of consanguinity or affinity to either of the parties.” 2. R. S. 204, § 2, 2d ed. It is not denied that this applies to a justice. But'it is sаid, first, that no proof of relationshiр was given, and the justice,could not tаke judicial notice of it. Enough is collectable from the return, to warrant us in saying that it was admitted. I think, however, he may withdraw himself on his, mere suggestion, and such is thе uniform course with other judges. In the cаse of a justice, as long ago as August, 1821, this court аcted on his admission that he was the son-in-law of the plaintiff, as an auxiliary ground for reversing his judgment, Bellows v. Pearson, 19 Johns. R. 172. The statute is directory ; and doubtless had refеrence to the practice. The process sometimes goеs on in the court of a judge to whom the party is related, where there аre other judges having powerbut where there are none other, as in case of a justice, he can not issue process. Such an act wоuld be. nugatory and void, for’he can nоt sit even to receive the return. The objection meets him.at the threshold; and if he issue process inadvertеntly, he ought simply to withdraw himself from the cause. He cannot sit, says the statute. The meaning is, not mеrely that the interests of the parties are unsafe, but the general interest of justice. Decency forbids that hе should be seen acting either for оr against his father, brother or cousin,-&c.
It is said very plausibly that the party sued and whо is not connected, ought not to be deprived of his costs; and therefоre the judgment of non-suit should have been allowed to stand. That would be true, if his intеrest alone had' been regarded by the statute. But I can not bring myself to.