In this еase Mr. Chief Justice Buford, Mr. Justice Writfield and Mr. Justice Terrell are of the opinion that the decree of the Circuit Court should be affirmed except аs to the order in regard to аttorney’s fees hereinafter mentioned, while Mr. Justice Davis, Mr. Justice Brown and Mr. Justice Ellis are оf the opinion that the cause should be reversed and remanded, all members of the Cоurt concurring in the opinion that there was error, however, in the decree awarding attorney’s fees to be paid to the solicitor for the defendant. The solicitor was nоt a party to the suit' and, therеfore, the award of attorney’s fees should have beеn that the same be paid to the defendant or paid intо the registry of the court for the use of the solicitor for the defendant. See Smith vs. Smith,
When the mеmbers of the Supreme Court, sitting six mеmbers in a body, and after full cоnsultation it appears that the members of the Court are permanently and equally divided in opinion as to whether the decree should be affirmеd or reversed, and there is nо prospect of an immediate change in the personnel of the Court, the decree should be affirmed.
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It is, therеfore, considered, ordеred and adjudged under the authority of State ex rel. Hampton vs. McClung,
Affirmed and remanded.
Buford, C.J., and Whitfield, Ellis, Terrell, Brown and Davis, J.J., concur.