AMBLER

v.

WHIPPLE

Mr. Justice MILLER delivered the opinion of the court.

It is the well-settled rule of this court, to which it has steadily adhered, that no rehearing is granted unless some member of the court who concurred in the judgment, ex presses a desire for it, and not then unless the proposition receives the support of a majority of the court. For this reason, and for the better reason that the pressure of business in the court does not permit it, no reply to the petition whatever is allowed from the other side or given by the court.

The petition for rehearing in this case presents some features which seem to require a departure from this rule. It states that the hearing in this court was had on an imperfect record, that a large part of the matter which was before the court below had been omitted in the transcript certified to this court, and it attempt's to show by affidavits that there was no laches or neglect for which the appellee should be held responsible in failing to examine and perfect the record before the hearing.

If this statement be correct, and if the omissions in the transcript on which the case was heard are material to the decision of the case, it presents a strong appeal for reargument; and we have, therefore, given a careful consideration to the very full petition for rehearing, and availed ourselves of its copious references to the original and supplemental transcripts.

But an examination of the proceedings in the case in this court sheds much light on a question suggested in the affidavits. The facts which are of record in this court, show that the sufficiency of the transcript on which the case was heard had been a matter of careful consideration by counsel for the petitioners, and that it was finally accepted and filed, and that for two years and a half it remained on the docket and no attempt to correct it by certiorari or otherwise was made. It caunot be said, in the face of these facts, even if the omitted parts of the record were material, that the appellee was without fault in failing to have it brought up.

But we have no doubt that Mr. Hughes, who was an experienced and careful lawyer, was satisfied, as we are, from an examination of this additional transcript, that it was wholly immaterial to any issue in the cause.

It consists of commissions, orders, and rules, which do not affect the merits of the case. It is filled with matter showing Ambler to have been drunk, vicious, negligent, and in contempt of the court, in the progress of the case. In short, if his cause was to be tried on his merits instead of the merits of his case, it shows enough, as the .original record did, to defeat it.

All this is only in aid of the theory on which Whipple has rested his case and lost it, namely, that because Ambler was a very bad man, a drunkard, and a convicted felon, that he, his. trustee and partner, could take to himself all the benefit of Ambler’s skill and labor, disregard his double relation as trustee and partner, and violate every principle which governs these confidential relations.

The only error of fact pointed out in the opinion of the court, which is sustained by the record, is that Amblei’, instead of leaving Washington about the 20th of August, the date of the successful experiment, did not leave the city until September the 1st, a difference wholly without influ-, ence on the points decided.

We remain of the opinion that the decree of this court was right, and the petition for rehearing is

Denied.