concurring:
I concur in this opinion solely upon the ground stated by the court, that we are bound by the decision in Hastings v. *407Johnson. If tbe question decided by tbe majority of tbe court in that case was now presented for tbe first time, I could not agree with tbe conclusion arrived at. But tbe record in that case fairly presented tbe question decided by tbe majority, as well as tbe one upon wbicb all agreed. Sucb being tbe case, tbe decision cannot be regarded as obiter (Starr v. Stark, 2 Sawyer, 605); and under tbe doctrine of stare decisis should be adhered to.