The facts are: This cause came oh for trial the last stated term; the Chief Judge and Jacob, Assistant Judge, present; the first Assistant Judge absent, but not interested in the trial of the cause, nor had he been of counsel to either party. The Chief Judge declined giving any opinion in the cause, as he was in affinity with the appellant. Some conversation was held at the bar upon the propriety of Judge Jacob's sitting alone; but the Judge observed, that as the parties seemed equally desirous of a trial, the cause might proceed,-reserving to the losing party the privilege of having the legality of the proceedings of the Court decided upon a motion for a new trial, to be entered at the present, but argued at the adjourned term, when the absent Judge would be in Court. This was agreed to by tire parties, and the trial proceeded.

The statute provision on which the motion is predicated is, “ that if two of the Judges in the trial of any cause shall be interested, or shall have been of counsel for either party in said cause, in every such case one Judge shall hold the Court for the trial of such cause.”

And now at this term the motion was argued, Tyler and Jacob, Judges, present; but the Court being divided, the former Judge for setting aside and the latter for supporting the verdict, the motion did not prevail, and a new trial was not granted.

Rule discharged.