Sea Insurance v. Day
New York Court of Chancery
This was an application on the part of the receivers of the Sea Insurance Company, who were proceeding in this suit as authorized by the statute in the name of the corporation, for leave to file a replication to the answer of D. M. Day, the original defendant. The bill was filed by the Sea Insurance Company to foreclose a mortgage given by Day and wife to the corporation.
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This was an application on the part of the receivers of the Sea Insurance Company, who were proceeding in this suit as authorized by the statute in the name of the corporation, for leave to file a replication to the answer of D. M. Day, the original defendant. The bill was filed by the Sea Insurance Company to foreclose a mortgage given by Day and wife to the corporation. To that bill Day put in an answer, in May 1838, setting up the defence of usury ; which answer, however, was put in without oath. The complainants’ solicitor neglected to file a replication for about thirteen months after…
1Opinion of the Court
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…
2Cases cited1 opinion
- Smith v. SmithIndiana Supreme Court · 1829
3Cited by2 opinions
- Somerville v. JohnsonWashington Supreme Court · 1891
- Porter v. VaughnSupreme Court of Vermont · 1854