— This case has been decided, the opinion being reported in 70 Ind. 469.

A motion is now made by one of the counsel for the appellees, Henry C. Duncan, Esq., to set aside the decision pronounced, on the ground that it was erroneously stated in the opinion delivered on the petition for a rehearing, that no brief had been filed for the appellee until the filing of the petition for a rehearing. This motion must be overruled.

It is, however, due to counsel for the appellee to say, that when the original opinion was prepared, there was no brief for the appellee with the papers in the cause, nor was there when the opinion on the petition for a rehearing was prepared, except that filed on the petition, nor is there yet ,• but the clerk’s record shows that the appellee filed a brief in the cause on February 28th, 1880, and sometime before the orig*602inal decision of the cause. This brief not having come to the knowledge of the court, and its attention not having been called to the fact that it had been filed, it was supposed that none had been filed. The brief, thus filed by the appellee before the original decision, has, doubtless, by some accident or oversight, got misplaced.