When this case was brought before the court, it was admitted by the counsel to be essentially the same with Gardner vs. Collins, reported in 2 Peters's Rep. 58; but he relied on certain evidences which he exhibited of a settled judicial construction of the act on which the cause depended, different from that which had been made by this court. Had the court been satisfied on this point, that settled construction would undoubtedly have been respected. But the court was not convinced that the construction which prevails in Rhode Island is opposed to that which was made by this court. On communicating this decision to the bar, counsel declined arguing the cause; and a certificate, similar to that which was given in the former case, was about to be prepared: but on inspecting the record, it was perceived that the judges of the circuit court, instead of dividing on one or more points, had divided on the whole cause; and had directed the whole case to be certified to this court. Considering this as irregular, the court directs the cause to be remanded to the circuit court; that further proceedings may be had therein according to law.
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