
    Lowry vs. M’Gee and others.
    
    A defendant in a suit in chancery, cannot set a cause down for hearing on the bill and answers, where no replication has been filed, until he gives a rule for a replication.
    Where an injunction has been dissolved, it will not be reinstated upon petition and affidavit of new evidence discovered, where there is no new ground stated in the petition, which was not already assumed in the bill.
    The complainant filed his bill in this case, in the circuit court of Monroe county, on the 21st of September, 1831. The answers were filed at the November term, following; at the same term a motion was made by the defendants to dissolve the injunction on the bill and answers, which was done accordingly. No replication to the answers having been filed at the April rules, 1832, the cause was set for hearing by the defendant’s counsel upon the bill and answers, no rule having been given for a replication. At the May term, 1832, the complainant moved the court to refer the cause to the rules, and reinstate the injunction. The court refused, to reinstate the injunction, or to remand the cause to the rules, but proceeded to hear the cause on the bill and answers, and decreed that the bill be dismissed. An order was' made by one of the judges of the supreme court in vacation, awarding a writ of error and supersedeas, under the authority of which order a supersedeas issued for the amount of the judgment rendered on the dissolution of the injunction at the November term, 1830, of the circuit court, as well as of the costs adjudged on the dismissal of the bill at the May term, 1832, of said court.
    
      R. J. Meigs, for the complainant.
    $. Jarnagin & II. L. White, for the defendants.
   Green, J.

delivered the opinion of the court.

We are of opinion that the circuit court erred in reír-sing to send the cause to. the rules for regular proceedings to be had, in order to a final hearing on the merits. No replication had been filed; and according to the practice in the court of chancery in England recognized in the 24th section of the act of 1801, ch. 6, before a defendant can set down the cause for hearing on the bill and answers, and thereby exclude all testimony, he must give a rule for a replication, after which he may give a rule for hearing on bill and answer. No rule for replication having been given, the rule for hearing on the bill and answers was irregular, and the court erred in hearing the cause.

The circuit court was right in refusing to reinstate the injunction upon the petition of the complainant, and the ex parte affidavit of Lusk; no new ground, not insisted on in the hill originally, is stated in this affidavit. The petition assumes it as a new ground, that he has lately discovered, that he could prove the facts stated in his bill. Surely this is nO reason for reinstating the injunction. Suppose he had known when he filed his bill, that‘he could prove the facts and allegations by fifty witnesses, nevertheless, if the defendant had denied those allegations, the injunction would have been dissolved, and a motion to reinstate founded on the affidavits of those witnesses, would have been irregular, and ought to have been refused. The practice must in reason be the same, whether he did or did not know he could prove his allegations when he made them. If the practice sought to be adopted in this petition were tolerated, there would be no end to motions to reinstate injunctions on affidavits, and motions again to dissolve on counter affidavits.

The decree will be reversed, and the cause remanded to the circuit court from whence it came, for regular proceedings to be had therein, and the supersedeas, so far as it affects the judgment given on the dissolution of the injunction, will be discharged.

Decree reversed.  