Clarkson

The above cause was argued before two of the justices of the Supreme Court, in the absence of the chief justice, at the last term, and a decision rendered in favor of the appellants. At the same term of the court at which the above cause was determined, and a short time previous thereto, a decision was announced from the bench by the chief justice, in the case of Leese and Valejo v. Clarke (in which judgment one of his *48 associates concurred), wherein principles were laid down and maintained as correct, which are directly in conflict with the principles advanced in the decision given in the present case, being diametrically opposed. One or the other of the opinions must be erroneous, and both ought not to remain in their present condition, neither having received the sanction of, or been heard before, a full bench. From these considerations, and in view of the vast magnitude and importance of the interests depending upon a final and early determination and settlement of the questions involved therein, the petition of the respondent should, in my judgment, be granted, and a rehearing ordered herein, to be had before a full court.

The cause having been reheard, in pursuance of…