Practice — Divided Bench — Affirmation of Judgment Below.
When, for any reason, one of the five members of this Court does not sit and the Court is evenly divided on the hearing of an appeal, the judgment below will be allowed to stand not as a precedent but as the decision in the case.
*256Special PROCEEDING begun before the Clerk of the Superior Court of Yadkin County by petition for the sale of land of Elizabeth Lynch, deceased, for assets to pay a judgment which plaintiffs had recovered in 1888 against the administrator of intestate, heard before Starbuch, X, at Spring Term, 1897, of Yadkin Superior Court. The defendant administrator had delayed or refused to have the land sold (being the only land owned by intestate) and in bar of plaintiff’s action pleaded the seven and ten years statutes of limitation, the defendant administrator having qualified and made publication of notice, &c., in July, 1883. A jury trial was waived and his Honor upon the pleadings and facts, agreed gave judgment for plaintiffs'and defendants appealed.
Mr. E. L. Gaither, for plaintiffs.
Mr. A. E. Holton, for defendants (appellants).
Per Curiam:
In this case Justice Lurches did not sit, and the Court is evenly divided. The practice of appellate Courts in such cases is that the judgment below stands, not as a precedent, but as the decision in the case. Durham v. Railroad, 113 N. C., 240, and authorities there cited.
Affirmed.