The motion filed in this case on January 17, 1898, to modify tbe order of affirmance herein so as to direct the dismissal of the bill without prejudice to the complainant’s right to sue at law, is denied for two reasons: First, because the majority. of the court are of opinion that the decree of the circuit court dismissing the cause of action on its merits was right; and, second, because the motion to modify the order of affirmance in this court was not filed until long after the term had lapsed at which the order of affirmance was entered.