
    Smith against West.
    June 9.
    After a cause had been regularly set down for a hearing, on the bill and answer, the plaintiff was allowed to file a replication, on payment of costs.
    THIS cause was set down for hearing, in September last, by the plaintiff, on bill and answer, but he did not bring it on. The defendant, accordingly, in May last, entered an order, and gave notice that he be at liberty to bring the cause to a hearing, at this time ; upon receiving the notice, the plaintiff filed a replication, and put the cause at issue.
    
      Griffin, for the defendant,
    now moved to set aside the replication, with costs; and that the defendant have leave to bring the cause to a hearing, on the bill and answer.
    Caines, contra.
    
    He read an affidavit of the plaintiff’s solicitor, stating facts, which showed that it was necessary for the plaintiff’s rights, to take proof in the cause, and explaining why it was before omitted.
   The Chancellor.

Under the circumstances of this case, the motion cannot be granted. There are, no doubt, frequent instances in which the court has allowed the plaintiff to reply, after the cause had been set down for hearing, on bill and answer. It is a matter resting in discretion. In some cases the plaintiff has been permitted to reply, after having gone to a hearing, on payment of costs. (Wyatt’s P. R. 375. Donegall v. Warr, 1 Eq. Cas. Abr. 43 pl. 4.) I shall, therefore, deny the motion, on condition that the plaintiff, within four days, pay the defendant’s costs arising from the cause being set down for hearing in September last, and from the proceedings on thepart of the defendant, in May- last. No costs of the present motion to be allowed on either side.

Order accordingly-  