delivered opinions in favor of affirming the judgment of the supreme court, and Senators Johnson, Lott and Putnam in favor of reversing it. And
On the question being put, “ Shall this judgment be reversed?” the members of the court voted as follows:
For affirmance: The Chancellor, and Senators Backus, Barlow, Bockee, Burnham, Denniston, Faulkner, Jones, Platt, Porter, Rhoades and Scott—12.
For reversal: Senators Bartlit, Chamberlin, Johnson, Lawrence, Lester, Lott, Putnam, Scovil, Smith, Strong, Yarnet and Wright—12.
Judgment affirmed.(a)
Although the effect of this equal division of opinion among the members of the court was to affirm the judgment of the court below, yet the affirmance did not settle the question of law, and has no binding force as a precedent. (Bridge v. Johnson, 5 Wend. 342, 372 to 375, and the cases there cited; Ram. On Legal Judgm. 18.) Indeed the law seems to have been since settled, and properly it is believed, directly the other way, by the case of Muzzy, supervisor, v. Shattuck and others, (1 Denio, 333,) decided by the supreme court in May, 1845. That decision, which appears to be utterly irreconcilable with the one reported in the text, was subsequently reviewed by the court for the correction of errors, and in December, 1846, was unanimously affirmed. A similar decision was made by the supreme, court of the United States, in January, 1845, where the question arose in an action on the official bond of the receiver of public moneys at Chicago. (The United States v. Prescott and others, 3 Howard’s Rep. 578.)