By the Court.

delivering the opinion.

[1.] This was a motion for a new trial, in Pike Superior Court. It was made at the August term, 1847, and dismissed at the ensuing term, on account of the failure of the applicant to file a brief of the testimony, as required by the 61st rule of practice. It is conceded that no brief -was filed under the revision and approval of the Court. It is contended, however, that a brief of the testimony was lodged in the Clerk’s office, after having been submitted to the inspection of the opposite counsel. The record does not show that a brief of the whole testimony ever was filed. But even if it did, there being no evidence that it was agreed upon by the opposite counsel or approved by the Court, the motion was properly dismissed. Petty and others vs. Mahaffy, 3 Kelly, 217.*