Tilghman, C. J. declined sitting on the argument, having been concerned as counsel for the defendant, unless the same became absolutely necessary for the purposes of justice. Brackenridge, J. was also averse from sitting, having given testimony for the defendant on the trial, and from some peculiar circumstances existing between himself and Mr. Turnbull.
It was then insisted by the defendant’s counsel, that Smith J. * -| *could not legally sit on the present argument; and the 44'-I case was compared to that of an appeal from the Circuit Court, in the decision whereof it was not competent to the judge who sat in the Circuit Court, to give an opinion. But the chief justice declared, that the uniform practice both in England and this state had ever been, for the judges who had tried causes, to sit afterwards in judgment on the points reserved.