delivered the Opinion of the Court.
[Absent — J udge Owsley ]
This case being heard upon the transcript of the record, and the arguments of counsel, and the court, composed of the Chief Justice and Judge Mills only, (Judge Owsley declining to adjudicate upon the matters in controversy between these parties,) being now sufficiently advised, the Chief Justice is of opinion, that the decree of t»liQ circuit court is erroneous, and ought to be reversed; but Judge Mills is of opinion, that said decree is not erroneous, and ought to be affirmed. It is, therefore, ordered and decreed, because of the said division and difference of opinion, that the said decree of the circuit court be affirmed, which is ordered tobe certified.
And it is likewise ordered and decreed, that the appellant pay to the appellees, their costs in this .court, and in this behalf expended.