The opinion of the court on the rule and on the application for a re-hearing, was pronounced by
Slidem,, J.When the decision of this case was under deliberation, a member of this court, believing that one of his relatives, not however a party to the cause, was indirectly interested in the event of the suit, declined to participate in the decision.
A consideration of the constitution and of articles 338 and 340 of the Code of Practice, and a conference with his brethren, havo satisfied the mind of that judge that, he had not the strict legal right to decline giving an opinion in this case. The defendant’s counsel having inyoked the strict legal rule, we have therefore concluded that, under the circumstances, the whole bench should participate in the decision of this cause. J
But while we thus yiold obedience to the rigid provisions of the Code, wo must, at the same time, take occasion to observe that, when circumstances not strictly within the textual provisions of the Code of Practice, render it disagreeable to a judge to take part in the decision of a case, and there it a quorum of the court without him, we do not believe the general interests of justice would be, in all cases, promoted by the subjection of a right of conscience to a mere *53arbitrary rule. It seems to us that a judge’s scruples, and the propriety of his joining in the decision of a case, should be left, without discussion at bar, to the consideration of himself and his brethren. .Such a course it is desirable that the bench should be left to pursue, and such also appears to us to be the interest and duty of the bar, who are not the mere representatives of their clients, but are also, as was well said by a learned judge, “ministers of justice acting in aid of the courts.”
Judgment below affirmed, the judges being equally divided. ON the re-hearing of this case, the judges being equally divided in opinion, separate opinions were given.It being the opinion of the court that the defendant, Furst, was, under the circumstances, legally entitled to a decision of this cause by a full bench; and it being also the opinion of the court that he is not, .under the constitution, entitled to the specific relief prayed for by his motion, it is therefore ordered that a re-hearing be granted; and it is further ordered that the r.ule taken by Furst be dismissed-