ment by counsel before the court, and a consultation upon the case by the court. And we know that, during the term, the judgment of the Common Pleas was affirmed. Four judges, only, sat; and what were their individual opinions we do not know. There could not have been a majority in favor of the right, or else the judgment of the Common Pleas would not have been affirmed. Either the judges were unanimous, or a majority of them were against the right; or they were equally divided in opinion, and the judgment of the Common Pleas was affirmed from necessity. How this was, no evidence exists to show. Take it at the worst that is possible, and what is the nature and effect in law of a judgment affirmed from necessity in a court of error, on an equal division of the court? The history of the late case of The Queen v. Millis, will afford an illustration on this subject.

"This case, reported in 10th Clark & Finnelly's Appeal Cases, 534, involved the question, whether a contract of marriage per verba de præsenti, but not made in the presence of a minister, in Episcopal orders, constituted a full and complete marriage at common law? On an indictment for bigamy, which depended on this question, the Court of Queen's Bench in Ireland, four judges sitting, were equally divided; but afterwards, and for the purpose of obtaining the judgment of the House of Lords, one judge, who had been in favor of the validity of the marriage, in form withdrew his judgment, and thereupon a judgment of acquittal was entered, and the case was brought by certiorari to the House of Lords. In the House of Lords, Lords Abinger and Cottenham and the Lord Chancellor were of opinion that it was not a perfect marriage, and were for affirming the judgment; Lord Brougham, Denman, and Campbell were of the opposite opinion. The entry on the journals of the Lords is: 'It was ordered and adjudged by the Lords that the judgment given in the said Court of Queen's Bench be, and the same is hereby affirmed; and that the record be remitted,' &c. And the fuller entry on the minutes states, that Lords Cottenham and Campbell having been appointed to tell the number of votes, it appeared, on report thereof, that the votes were equal, that is, two for reversing, and two for affirming, whereupon, according to the ancient rule in the law, semper præsumitur pro negante, it was determined in the negative. Thereupon the judgment of the court below was affirmed, and the record remitted.'

"While this case was pending in the Lords, the case of Catherwood v. Caslon, involving the same general question, came on in the English Court of Exchequer, and, after argument, judgment was suspended until the decision of that case. The case of Regina v. Millis,' says the reporter of the case in the Exchequer, 'having been determined, and the invalidity of a marriage at the common law, contracted per verba de præsenti, but not in the presence of a priest in holy orders, having been thereby established, the present case came on again for argument.' The counsel sustaining the side of the marriage admitted that, according to the decision of the House of Lords, it must be taken that no valid marriage had been contracted;' and Parke, B., in pronouncing the judgment of the court said: The parties in this case entered into a contract of marriage per verba de præsenti, in the presence of witnesses, but not proved to have been made in the presence of a

*13 Meeson & Welsby, 261.

minister in Episcopal orders. Since the original argument, it has been decided in the House of Lords, in the case of The Queen v. Millis, that unless in the presence of such a minister, such a contract does not constitute a valid marriage at common law in this country; and by the authority of that case we are bound.'

Undoubtedly, the affirmance of the judgment in The Queen v. Millis, was against what had been the general impression of the profession after the case of Dalrymple v. Dalrymple, yet no one in the Exchequer suggested that the affirmance in the House of Lords by an equally divided court had not settled the law by conclusive authority. An equal division of a court of error, on a question of reversing a judgment, is like a tie vote in a legislative assembly on a question of enacting or repealing a law. The binding nature of the decision is the same, as where the action of the body is unanimous. The influence of an opinion, on the minds of professional persons, will depend on the character of the judge who delivers it, and on the number of judges who unite in it; but the authority of a judgment of a supreme tribunal, as establishing a principle and settling the law, is the same, whether the court be full and unanimous, or partial and divided. A judgment affirmed by a divided court binds inferior courts, and of course is a precedent in the court in which it was entered. And not only is the judgment of a court, in itself, an authority, but it is the only thing that is an authority.

"It follows that Chief Justice GIBSON was strictly accurate in saying of McDermond v. Kennedy, that had the case been reported, it would have furnished AN AUTHORITY IN FOINT.'"'

INDEX.

ADMIRALTY. See Collision; Information, 2; Jurisdiction, 20, 21; Prac-
tice, 12, 15.

1. Vessels are liable in admiralty for marine torts committed by them
through the negligence of a pilot in charge, and compulsorily taken
on board. The China, 53.

2. By its law, all maritime claims upon the vessel extend to the proceeds
arising from its sale. The Siren, 152.

3. Where, in case of collision, with loss, there is reasonable doubt as to
which party is to blame, the loss must be sustained by the one on
which it has fallen. The Grace Girdler, 196.

4. The rule of navigation which requires that a vessel coming up behind
another, and on the same course with her, shall keep out of the way,
presupposes that the other vessel keeps her course, and it is not to be
applied irrespective of the circumstances which may render a depar-
ture from it necessary to avoid immediate danger. Ib.

AGENT.

1. Where an instrument payable at a bank is lodged with the bank for
collection, the bank becomes the agent of the payee to receive pay-
ment. Ward v. Smith, 447.

2. Where not lodged with the bank, whatever the bank receives from the
maker to apply upon the instrument, it receives as his agent. Ib.
3. Without special authority, an agent can only receive payment of the
debt due his principal in the legal currency of the country, or in bills
which pass as money at their par value by the common consent. Ib.

ALABAMA.

Her statute of 7th October, 1864, under which contracts of affreightment
are authorized to be enforced in rem through the courts of the State,
by proceedings, the same in form as those used in courts of admiralty
of the United States, is unconstitutional. The Belfast, 624.

ARBITRAMENT AND AWARD.

An act of Congress referring a claim against the government to an officer
of one of the executive departments, to examine and adjust, does not,
even though the claimant and government act under the statute, and
the account is examined and adjusted, make the case one of "arbi-
trament and award." Gordon v. United States, 188.

ASSIGNMENT. See Equity, 8.

(757)

ATTORNEY-AT-LAW. See Judicial Officers, Mandamus, 1.

1. Cannot be disbarred for misbehavior in his office of an attorney gen-
erally, upon the return of a rule issued against him for contempt of
court, and without opportunity of defence to the first-named charge.
Ex parte Bradley, 364.

2. However, formal allegations, making specific charges of malpractice,
are not essential as a foundation for proceedings against attorneys.
What is requisite is, that, when not taken for matters occurring in
open court, in the presence of the judges, notice should be given to
the attorney of the charges made, and opportunity afforded him for
explanation and defence. The manner in which the proceeding shall
be conducted, so that it be without oppression or injustice, is a matter
of judicial regulation. Randall v. Brigham, 523.

ATTORNEY-GENERAL. See Informer.

AUTHORITY.

1. Where the judges of the Supreme Court of the United States are equally
divided in opinion, the judgment of affirmance, which is the judgment
rendered in such a case, is as conclusive as if rendered upon the con-
currence of all the judges. Durant v. Essex Company, 107; and see
Appendix, 753.

2. The law about municipal bonds, as adjudged in Gelpcke v. The City of
Dubuque (1 Wallace, 176-223), is not open for re-examination. Lee
County v. Rogers, 181.

BANK BILLS. See Tender.

BILL OF EXCEPTION. See Practice, 1, 2, 10.

Should only present the rulings of the court upon some matter of law, and
contain only so much of the testimony, or such a statement of the
proofs made cr offered, as may be necessary to explain the bearing
of the rulings upon the issue involved. Lincoln v. Claflin, 132.

BILL QUIA TIMET. See Equity, 1.

BILLS OF EXCHANGE. See Texas, 2.

The matter of, when drawn by officers of the government, examined; and
the law decided to be, that as under existing laws there can be no
lawful occasion for an officer to accept drafts on behalf of the govern-
ment, such acceptances cannot bind it, though there may be occasions
for drawing or paying drafts which may bind the government. The
Floyd Acceptances, 666.

BLOCKADE. See Public Law, 2.

CALIFORNIA.

A grant of land in, purporting to have been made by Governor Pio Pico,
on the 2d of May, 1846, and insufficient on the archive papers, decided
not to be helped by papers produced by the claimant; these being
found by the court, upon the evidence in the case, not genuine, but
fabricated on an afterthought, from fragments of papers left unfin-
ished by Pio Pico. Roland v. United States, 743.