delivered the opinion of the court.

We are of opinion that the circuit court erred in reír-*239sing 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.