In the opinion and decision heretofore rendered in this case (211 Fed. 972, 128 C. C. A. 470), a majority of the judges held that the bill of exceptions found in the record was not sufficiently well taken to bring all the evidence properly before the court for consideration, and thereupon affirmed the judgment of the lower court without passing upon certain assignments of error to the rulings of the trial judge, refusing instructions to the jury affecting the merits of the case. On the application for rehearing and on consideration we concluded that our ruling rejecting the bill of exceptions was erroneous, and that wc should re-examine and consider the case, giving full effect to said bill of exceptions, and thereon render the proper judgment without further briefs or argument. '

Before reaching a final conclusion the death of Judge Shelby, who constituted a part of the court in the case, supervened, leaving only two judges to determine the matter, and they not fully concurring on certain points necessarily arising under the assignments of error.

Under these circumstances and that justice may be done, we feel compelled to grant the rehearing asked and order the case restored to the docket for reassignment and submission before a full bench.

And it is so ordered