Luco

Although we were not present at the argument of the motion, which was afterwards submitted on briefs, counsel for appellant not being present at the time the motion was made, we have considered the point made by respondent, and concur in the views expressed in the opinion of Justice Paterson.

When this cause was first, submitted, the judgment of the court below was affirmed, four justices concurring. One of the justices who participated in the decision was not present at the argument; but it was understood by the members of the court, at the time of the decision referred to, that counsel for both parties had stipulated at the hearing—as counsel had in nearly every other case on the calendar for the term at which this case was heard—that any justice not present at the argument might participate in the decision. Upon a representation made by counsel for appellant, after the decision, that no such stipulation had been entered into, and upon their motion, based on the ground that only three of the justices who heard the argument had participated* in the decision, the judgment was set aside. Since that time, the cause has been heard and submitted several times, but no decision has been reached, owing to a change in the personnel of the court, and an equal division of opinion among the six justices qualified to act. At the last October term, counsel for respondent moved that the judgment be affirmed, it appearing that the justices qualified to act were equally divided in…