
    Holmes & Williams v. Williams.
    From Wake.
    Where' a cause stands more than two terms upon replications, and the usual order for commissions, it is regular to set it down for hearing1 ; and where no steps are taken to prepare the cause for trial, the suit may be dismissed for want of prosecution ; but the Plaintiff may, if he please, have the cause set for hearing on bill and answer, or may have it heard; therefore, when the Judge below refused both, and dismissed the bill without hearing, such dismission was held to be erroneous.
    Bill filed at April term 1822, the object of which was to set aside a conveyance fraudulently obtained from Complainant Williams. The last step taken in the cause appeared to have been at the. Spring Term of 1823, when commissions to take testimony were ordered, and at the Fall Term of 1825, Defendants moved to dismiss with costs for want of prosecution. Complainants resisted this motion, and prayed the Court either to hear the cause, or set it down for hearing, which the Court refused, and ordered it to be dismissed with costs; whereupon Complainants appealed.
   T-Tat.t.. Judge —

The rule, that the party should be prepared in two terms to set the cause for hearing, is a good one, it prevents delay, and where the parties have taken no steps to prepare for trial, the causes have been, generally dismissed, because it would avail the party nothing either to have the cause heard, or set for trial in that unprepared state; but cases may happen where a Defendant admits enough in his answer to entitle the Complainant to a decree for something, although in other parts of his answer he may deny other allegations in the bill which it is incumbent in the Complainant to establish by proof; however without procuring such proof, the Complainant may wish to have the cause heard on bill and answer, or set for hearing upon bill and answer. This j (¡link he is 'entitled to have done; as it was not done, Í think a writ of Procedendo oiurht to issue: but the ° ’ Complainant will not, of course, be entitled to take tes» ^mony ¡n cause, he can only do it upon sufficient cause shewn.

And of this opinion were the other Judges.  