— The statute requires that the justices shall be disinterested. Rev. Stat. chap. 1, rule 22, provides that when a person is required to be disinterested, in acting upon any question, in which other parties have rights, any relationship to either of said parties, within the sixth degree inclusive, according to the rules of the civil law, shall be construed to disqualify such person from acting on such question, unless by the express consent of the parties, interested therein. In this case, the justice was within the fourth degree of relationship, and there was no express consent. Though he was equally related to both parties, we think he was incompetent, and therefore the justices had no jurisdiction.

A. question arises as to the computation of damages. The case comes within the letter of the statute of 1848. That statute includes all cases, where the oath has actually been taken, although the justices had not jurisdiction. And under that statute, the damages must be assessed.

Defendant defaulted.