This action was originally commenced in the court below, June 21, 1870, and the appellants recovered judgment at a subsequent term. A new trial was granted afterward, at the December term, 1871, and the appellants appealed to' this court. At the August term, 1872, this court affirmed the judgment of the court below in granting a new trial, and the cause was remanded. 1 Mon. 639. Upon the second trial in the .court below judgment was rendered for the respondents, and this appeal was taken.
However much I might be inclined to differ from the opinion of this court, which has been referred to (1 Mon. 639), nevertheless that opinion is and must be the law of this case until it is reversed by a higher tribunal. Lick v. Diaz, 44 Cal. 479; Pond v. Davenport, id. 481. For this reason, the judgment of the court below is affirmed.
Judgment affi/rmed.