Hume v. Commercial Bank

• Decision Date: 30 September 1882
• Citation: 78 Tenn. 1
• Parties: William G. Hume et al. v. Commercial Bank et al.
• Court: Tennessee Supreme Court

78 Tenn. 1

William G. Hume et al.

v.Commercial Bank et al.

Supreme Court of Tennessee.

September Term, 1882.

FROM KNOX.

Appeal from the Chancery Court at Knoxville. W. B. STALEY, Ch.

CORNICK & CORNICK for Complainant.

JAMES COMFORT for Trustee.

INGERSOLL & COCKE, for Tillman, Administrator.

GEORGE ANDREWS and W. M. BAXTER for Ross and Boynton.

GEORGE BROWN and GEORGE WHITE FOR H??negar.

COOPER, J., delivered the opinion of the Court.

In this case, the creditors of the Commercial Bank and James Comfort, the trustee, under the general assignment of the bank, have filed separate petitions for a rehearing. The petition of the creditors is rested entirely, and the petition of the trustee principally on the fact that one of the judges of this Court, who participated in the hearing and decision, was incompetent to sit in the cause by reason of relationship to one of the creditors of the bank.

The constitution of 1870 upon this subject is: “No judge of the Supreme Court shall preside on the trial of any cause where either of the parties shall be connected with him by affinity or consanguinity, within such degrees as may be prescribed by law, except by consent of all the parties:” Const., art. 6, sec. 11. The statute is: “No judge of any court shall sit in any cause where he is related to either party by consanguinity or affinity within the sixth degree computing by the civil law, except by consent of the parties entered of record, or put in writing if the court is not a court of record:” Code, sec. 4098.

The fact, upon which the petitions for rehearing are based, is that the judge of this Court and the creditor mentioned married sisters who are still living. The two are, therefore, not related by consanguinity. Are they related by affinity?

Affinity, as distinguished from consanguinity, signifies the relation which each party to a marriage, the husband and the wife, bears to the kindred or blood relations of the other. The marriage having made them one person, the blood relations of each are held as related by affinity in the same degree to the one spouse as by consanguinity to the other: Bac. Abr. Marriage A; Bouv. Law Dict. Affinity; Enc. Brit. voce Affinity. “ Affines sunt viri et uxoris cognati:” Dig. 38, 10, 4; Just. Inst., 1, 10, 6. The relationship by affinity does not extend further, and hence the maxim “ affinis mei affinis non est mihi affinis”--a person related by affinity to one who is related to me by affinity is not related to me by affinity. It is therefore said by the civilians that if a brother and sister marry two person not related, and the brother and sister die, the widow and widower may intermarry; for though a man is related to his wife's brother by affinity, he is not so to his wife's brother's wife: Taylor Civil Law, 339, cited in 1 Bish. on Mar. & Div., sec. 314, and in Chitty's note to 1 Black., 435. It must be equally true that although a man is related to his wife's sister by affinity, he is not so to wife's sister's husband. And so it has been held: Poydras v. Livingston, 5 Mart., 293. The same result follows necessarily from the fact that the degrees of affinity are computed by the civil law in the same way as those of consanguinity. The degree of relation by consanguinity of a husband or wife to a third person is computed by counting up to the common ancestor, and down to the related party: Kyle v. Moore, 3 Sneed, 184. The degree of relation by affinity of the other spouse is found by counting up to the common ancestor and counting down. The husband of a wife's sister could not possibly fall within the line of computation. Our statute, it will be remembered, limits the incompetency of a judge either by consanguinity or affinity to the sixth degree computing by the civil law.

The question is not a new one in this State. The constitution of 1796 provided art. 5, sec. 8: “No judge shall sit on the trial of any cause where the parties shall be connected with him by affinity or consanguinity, except by consent of parties.” In Waterhouse v. Martin, Peck, 374, a question arose as to the competency of two of the three judges then composing the Supreme Court of Errors and Appeals by reason of their supposed relation to one of the parties. Judge Whyte was married to the sister of defendant Martin's mother, and Judge Haywood's son had married the sister of Martin's mother. The first point which came before the court was whether the question of competency should be determined by the court, or by the judge himself. Judge Whyte was of the opinion that the judge must decide for himself the question of his own competency. The other two judges, Haywood and Peck, held that the question was for the court. All of them agreed that Judge Whyte was incompetent, because his wife was related by consanguinity to the defendant Martin through his moth...