The opinion
By the Court :
This motion presents the point whether a re-argument can be granted under the statute in a cause where the four justices who decided it were equally divided in opinion, and the fifth justice, who was also present at the hearing, declined to take part in the decision of the court on account of being interested in the question. There is no exception in the law, and there is nothing left to the discretion of the court. The party may demand as a matter of right a re-argument in any cause-where a division of opinion is noted in the minutes of the case. The incompetency of the fifth justice may be removed by a change of interest before the cause is heard again, and in that event it can be re-argued before all the justices, and the statute would then properly apply to the case. Besides, it is certainly within the discretionary power of the court to grant a rehearing in any case when it seems desirable. We think the order sought to be vacated was properly entered.
Motion denied.