#### B. F. SMITH v. COMMISSIONERS OF DARE COUNTY.

(Filed 17 September, 1913.)

Appeal and Error — Division of Opinion — Affirmance of Judgment.

Where one of the five justices of the Supreme Court does not sit or take part in the determination of a case on appeal, and the other members of the Court are equally divided in their opinions, the judgment, below stands affirmed.

Appeal by defendant from Whedbee, J., at March Term, 1913, Of PERQUIMANS.

Charles Whedbee, P. W. McMullan, Bond & Bond, and Ward & Thompson for plaintiff.

Ehringhaus & Small, E. F. Aydlett,.and J. S. McNider for defendant.

*98Iel this case Justice Allen did not sit and took no part in tbe decision of tbe Court. Justice BeowN and Justice Hoke voted to affirm tbe judgment; Chief Justice Olaek and Justice Walkbe voted for a new trial. Tbe Court being evenly divided, .tbe judgment stands affirmed.