27 N.J.L. 622 | N.J. | 1858
1. A law which provides that no judgment of the Supreme Court shall be reversed by this court, unless a majority of those members of the court who are competent to sit on the hearing and decision of the case shall concur in such reversal, is unconstitutional.
2. But even if such law were constitutional, if a majority of the judges who are competent to sit in the cause, when it is decided, concur in reversal, the judgment should be reversed.
At this term the counsel for the respective parties discussed the construction and validity of the act of 1855, referred to in the rule entered at March Term.
After argument of counsel, the court decided the questions presented by the discussion, as follows:
Affirmative—The Chancellor, the Chief Justice, and Judges Potts, Vredenburgh, Risley, Valentine, and Wood.
Second. If the law was constitutional, was there a majority of the members of the court competent to hear and decide the case, voting for reversal ?
Negative—The Chancellor.
On motion of the counsel for the plaintiffs in error, the following order was entered in the minutes:
Inasmuch as, upon the final decision of this cause, five judges of this court voted for affirmance, four of them for a reversal of the order of the Supreme Court in all things, and that the said judgment and execution of said Ely, Clapp and Bowen be declared invalid and postponed wholly to the judgments and executions of the plaintiffs in error; and two judges of this court voted for an affirmance of said order in part, and in part for a reversal thereof, and that said judgment and execution of Ely, Clapp and Bowen be declared valid, and entitled to its priority for the sum of three thousand and fifty-two dollars and ninety-four cents, being the amount of indebtedness ac
See same case 3 Dutch. 622. Cited in Bell v. Flemming’s Ex., 1 Beas. 495.