Niver and another agt. Rossman. make replevin, and it was no matter whether the goods were thus placed beyond the sheriff's reach designedly to prevent his executing the process in replevin or in entire good faith, in the honest belief that the eloignor had the right to do so. In either event, the capias in withernam issued. It was in no respect founded upon the inquiry whether the distress had been taken away, with an intention to evade a replevin, but upon the mere return that it was taken away so that the sheriff could not make replevin. So now, the Code provides that if the property has been concealed, removed or disposed of—not with a fraudulent or felonious intent-not with a design to evade a replevin, but "so that it can not be found or taken by the sheriff," the remedy of arrest may be resorted to. The only difference seems to be in the remedy, namely, an arrest, instead of reciprocal distress, the foundation being intended to be the same in both cases, viz: that the property is so that the sheriff can not make replevin. We can, therefore, see no reason for requiring from a plaintiff in such an action any thing more, in order to justify an arrest, than the fact which is established in this case, that the property in dispute was removed so that it could not be found or taken by the sheriff and though we may regret the harsh consequences which may follow from the other provisions of the statute, we have no alternative but to affirm the order of the special term, but it must be without costs. 5 How. 153-NOT CONCURRED IN, 6 How. 11, 12. SUPREME COURT. NIVER AND ANOTHER agt. ROSSMAN. A per centage or extra allowance should be allowed in all referred causes; be cause they are all litigated trials. The application should be made in the county where the judgment is rendered, unless some special reason exists for applying elsewhere. Dutchess Special Term, Nov. 1850. The venue in this cause was laid in Columbia county, and the cause referred by consent Niver and another agt. Rossman. and tried before a referee, who reported $500 due to the plaintiffs. WM. ENO, for Plaintiffs. HOGEBOOM & COLLIER, for Defendant. BARCULO, Justice.-I think the defendant's counsel is mistaken in supposing that the allowance of per centage is not applicable to cases tried before referees. There is certainly nothing in the Code which excepts them. The section applies, in terms, to all "difficult or extraordinary cases." In the case of Dyckman vs. McDonald, ante page 121, I have just held that all litigated cases are "difficult" in some degree within the meaning of the section. If this be correct, then all referred cases are proper subjects for some additional allowance, for all such cases are litigated and cause the party to incur extra expense, which is the true ground for the extra allowance. But it is contended that Rule 86 requires the application to be made to the court before which the trial is had, and that as this cause was not tried before any court no application can be made. The answer to this argument is that the statute gives the right and the rule can not take it away. Moreover the rule does not exclude referred cases by its terms; for it allows the application to be made to the court before which the "judgment is rendered." The rule, therefore, would be literally complied with by applying to the court before which the judgment is, or is to be, rendered. However, I do not suppose this to have been the real object of the rule. I presume the latter clause had reference mainly to the second subdivision of section 308, providing an allowance in numerous cases where no trial is had, but only a judgment rendered. I think, however, that the terms of the rule as well as the convenience of the parties require the application to be made. where the judgment is rendered unless some special reason for applying elsewhere exists. No such reason appearing in this case, I must deny this motion without prejudice to an application to be made in Columbia county, and without costs. Tracy and others agt. Humphrey. SUPREME COURT. TRACY AND OTHERS agt. HUMPHREY. Where a complaint contains allegations claiming separate and distinct bills and the anor accounts and an aggregate amount as a balance due upon all; swer denies one bill, only, and the balance claimed, specifically in the language of the complaint. The plaintiff may have judgment (under § 246) But the answer for the amount of the accounts not denied by the answer. can not be stricken out on affidavits tending to show its falsity, where it is verified according to the Code (Mier agt. Ferguson, 4 How. Pr. R. 115). New York Special Term, July, 1850. The action was for goods sold and delivered. The complaint was for three separate bills of goods sold at different times. The answer, duly verified, made a specific denial as to one of the bills in the words of the complaint, but was silent as to the other two bills. E. SANDFORD, moved to strike out the answer as false on affidavits and letters of the defendant, showing repeated acknowledgments of the debt and repeated promises to pay it, and for judgment for such portions of the claim as were untouched by the answer. EDMONDS, Justice.-In this case the plaintiffs declare for three separate bills of goods sold at different times and claim a balance The defendant answers, due of less than the aggregate amount. denying the purchase of one of the bills and denying that he is indebted in the balance claimed to be due. A motion is made to strike out the answer as false on affidaBut the vits which go very far to show that it can not be true. answer is verified and according to our ruling in Mier agt. Ferguson (4 How. P. R. 115), at general term, an answer can not be stricken out as false, when verified according to the Code. The Code has given a defendant the privilege of pleading just as he has pleaded in this case, and though he may owe all the debt demanded of him but one cent, that one cent will, under such a mode of pleading, render his verification of his answer, a sufficient objection to striking it out; and for this reason, that he has availed himself Tracy and others agt. Humphrey. of the privilege which the Code has given him, of “denying specifically" one of the averments of the complaint. To avoid such a difficulty, some care must be taken in framing the complaint, and in this case the plaintiffs' difficulty has arisen from the form of their complaint. It is a printed form, I observe, and so imperfectly drawn as to leave open for escape the very opportunity of which the defendant has availed himself. But the motion is not confined to striking out the answer; it is also for judgment and for other relief, and under that I may afford the plaintiffs some relief. Two of the averments in the complaint, setting forth the sale of two bills of goods, one for $10 and one for $136.31, are not answered at all, and under the Code are to be taken as true. Now in regard to those two sums there is this difficulty in the case; how is judgment to be finally rendered for them? The damages in respect to them can not be, as formerly assessed by the jury on the trial of issues in the cause, because the Code confines the action of the jury to the issues joined, and in respect to those sums, there is no issue and there can be no trial either before a court or jury, because a trial is defined to be the judicial examination of the issues between the parties (Code, § 252). I can perceive only one mode of obtaining a judgment for those sums and that is under section 246, for the defendant failing to answer the complaint. He has failed to answer the complaint in respect to those sums and I do not see why the plaintiffs are not entitled at once to enter judgment for them. It must be so, cr else a defendant who answers as to one cent only of a demand for $10,000 may work out for the plaintiff the delay and expense of a litigation when all of such large sum may be conceded to be due except that one cent. This course may involve the necessity of two judgments on the record in analogy to the old practice where there was a demurrer to part and an issue to part, and the issue be tried before the demurrer is argued, or when in assumpsit, there is a demurrer to evidence and the jury discharged without assessing damages; whereupon judgment being finally given for the plain Nones agt. The Hope Mutual Life Insurance Company. tiff a writ of inquiry is awarded, or where in general the jury on the trial of an issue have omitted to assess the damages, the omission may be supplied by a writ of inquiry. Some such practice must be adopted or I do not see how a plaintiff in case the defendant admits part and denies part of the claim against him can ever get judgment for the admitted part. The plaintiffs may therefore have judgment for the $10 and the $136 31, with interest as claimed in the complaint with $10 costs of motion and costs of suit thus far. SUPREME COURT. NONES agt. THE HOPE MUTUAL LIFE INSURANCE COMPANY. It is a matter almost of course, on motion (under Rule 24), to allow a case to be incorporated into the judgment record entered upon a report of referees upon the whole issue, for the purpose of review by appeal at the general term, where questions of law are involved. A rehearing may be granted on such a motion. If questions of fact alone are involved a motion for the rehearing should be made at the special term. Upon an issue joined the whole matter was by consent referred, and upon the coming in of the referee's report on the whole issue, judgment was entered for the plaintiff. In the mean time the defendant made a case which it now asks to have incorporated in the judgment record in order that it may have the decision of the referee reviewed. A. H. DANA, for Defendant. C. N. POTTER, Contra. EDMONDS, Justice. By section 272 of the Code, the report of a referee upon the whole issue shall stand as the decision of the court, and judgment, be entered thereon in the same manner as if the action had been tried by the court. By our 24th rule, on filing a report of a referee upon the whole issue, judgment may be entered as a matter of course. |