Sea Insurance v. Day

The Chancello». It is evident from the papers in this cause that the replication was omitted to be filed by the gross negligence of the complainants’ solicitor, in violation of his duty to his clients ; who, by his death, have now no remedy against him. It is not a matter of course, however, to permit the filing of a replication after the expiration of the time limited by the rules of the court for that purpose. But the court must be satisfied there is a probability that injustice will be done if the complainant is compelled to bring his cause to a hearing upon bill and answer. (Kane v. Van Vranken, 5 Paige’s Rep. 63.) Where an answer is put in upon oath, denying any material allegation in the bill, the complainant must show that the bill was verified by oath ; or he must state, in his affidavit in support of his application, that he believes and expects to be able to prove that the allegations, denied or put in issue by the answer, are true in point of fact. And if new matters are set up in a sworn answer, as a defence to the suit, the complainant should state upon oath, that the matters thus set up in the answer, or some material parts thereof, are not in fact true; or at least that he believes them to be untruly stated. In the present case, therefore, if it had appeared that the answer of Day the original defendant was verified by oath, I should have required the affidavit of the officer or agent of the corporation, by whom the mortgage [249] was taken, contradicting the allegation of usury contained in such answer. In this case, however, it does not appear that the answer was on oath ; and in the present situation of the cause, even if the answer was sworn to, the complainants would have the legal right to dismiss their bill, upon payment of costs, and to commence de novo. For it is a settled rule of this court that the complainant may dismiss his bill, upon pay- ment of costs, in any stage of the proceedings before a decree or decretal order has been made affecting the rights of the parties, if he is not in contempt. And such a dismissal is no bar to another suit for the same cause. (Carrington v. Holley, 1 Dickens, 280. 2 Daniels’ Ch. Prac. 175, 355. Smith, adm. v. Smith, 2 Blackf. Rep. 232.) There does not, therefore, appear to be any good reason for refusing this application, and' turning the complainants around to file a new bill, when there is nothing to induce the court to suppose the justice of the case is with the defendants. The application for leave to file a replication is granted, upon payment of the costs of opposing this motion ; which are fixed at ten dollars.