It appearing, that three of the judges of the court, to wit, Kinkade, Jones and. Allen, are of opinion that the judgment herein should be affirmed, and three of the judges of the court, to wit, Robinson, Matthias and Day, are in favor of a judgment of reversal, and one judge, to wit, Marshall, C. J., does not participate, the court being thus equally divided in opinion as to the merits of the case and unable for that reason to agree upon a judgment, the entry of this fact constitutes an affirmance of the judgment of the Court of Appeals.

Judgment affirmed.'