delivered opinions concurring substantially with the view taken of the case by the supreme court, except as to the evidence offered on the part of the defendants by way of recoupment. Senators Lott and Sherman said that if the defendants could claim a deduction, under any circumstances, for not keeping the basin in repair, upon which they expressed no opinion, it was necessary to give notice of the defence. Senator Johnson was of opinion that no notice was necessary, but agreed that the evidence offered was properly rejected, on the ground that the case was not one to which the doctrine of recoupment was applicable.
On the question being put, v Shall this judgment be reversed ?” the members of the court voted as follows:
For affirmance: Senators Bockee, Burnham, Faulkner, Jones, Johnson, Lott, Rhoades, Scott, Sherman, Smith and Wright—11.
For reversal: Senators Hard and Works—2.
Judgment affirmed,