Hopkins agt. Everett. should be guilty of two and not guilty of any one, his answer would not be literally untrue. the Code. The object of the adopted by the code, is to require the defendant to admit so much of the charge as he can not conscientiously deny, and thus narrow the issues to those points which are really in controversy. This is not good pleading within special pleading, and the oath The denial in this case should have been of each charge disjunctively, if the defendant intended to put the whole of them in issue. Judgment for plaintiff on demurrer, with leave to defendant to amend on the usual terms. SUPREME COURT. ANONYMOUS. Fulton Circuit, October 1851. This was an action of slander; the slanderous words were spoken by the wife. Defendants for answer put in a general denial only. On the trial, defendants offered to prove the plaintiff's general character bad. CADY, Justice-held that general character could not be given in evidence in an action of slander under a general denial. Robinson agt. Weeks. SUPREME COURT. ROBINSON agt. WEEKS. A cause of action arising upon a tort for the taking or conversion of personal property which survives the party and goes to the executors or administrators, is assignable. Such an assignment carries with it the assignor's title to the property converted and vests it in the assignee. But the assignee can not maintain an action for the tort in his own name until after he has demanded the property. The unlawful taking or conversion of personal property, gives the wrong doer no title. The title remains in the original owner or his assigns until judgment and satisfaction for the tort. (The case of Gardner vs. Adams, 12 Wend. 297 examined, and so far as it asserts a contrary doctrine overruled.) A cause of action arising from a tort merely personal, as assault and battery, slander, and the like, is not assignable. Such causes of action die with the person, and no one has such a property or interest in them as forms the subject of sale or transfer, until after judgment. Where the plaintiff in an action of tort, the cause of which is assignable, and while the action is pending, assigns the same, and judgment is subsequently obtained, and the defendant, without notice of the assignment, pays to the sheriff the amount of such judgment, upon executions in his hands against the nominal plaintiff under § 393 of the Code, such payment will not operate to discharge the judgment thus obtained, as against the assignee. A defendant who volunteers to discharge other's debts, which he is under no obligation to pay, must see to it that he pays the debts of the person who is really his creditor, or he will not be protected. He pays at his own risk, of being right, where the payment is not directly upon his own debt. Seventh District General Term, Sept. 1851. Present, WELLES, SELDEN and JOHNSON, Justices. The case is sufficiently stated in the opinion of the court. WM. IRVINE, for Plaintiff. GEO. T. SPENCER, for Defendant. By the Court, JOHNSON, Justice.-This is an appeal from an order made at special term, denying the motion to set aside the execution issued in the above entitled cause. The action was for the conversion of a certain amount of money in bank bills; and after the trial, but before the judgment was perfected, the plaintiff sold and assigned the judgment he Robinson agt. Weeks. might recover to his attorney in the action, as the affidavits show bona fide, and for a good and valuable consideration. The judgment was perfected on the 10th of August 1849, and on the next day the defendant, without any notice of the assignment, paid the amount to the sheriff of Steuben county on two executions then in his hands for collection, in favor of Daniel G. Smith against the nominal plaintiff. The defendant's counsel insists that the plaintiff's attorney by the assignment to him acquired no title to the judgment for two reasons. First, that the cause of action was tort, and not assignable; and, second, that at the date of the assignment there was no judgment in existence; and the assignment gave no title to the judgment perfected afterwards. To sustain the first ground, Gardner vs. Adams (12 Wend. 297) and The People vs. Tioga Com. Pleas (19 Wend. 73), are relied upon. In Gardner vs. Adams, the court only held that a tort was not assignable so as to warrant an action in the name of the assignee, as the court expressly declare in The People vs. Tioga C. Pleas; and in the latter case it was held that a tort merely personal was not assignable, so that a court of law would protect the assignee against the subsequent fraudulent discharge of the judgment by the assignor. I confess I have never been able to see how the case of Gardner vs. Adams, upon the point relied upon, could be sustained upon principle, even if the court intended to go no farther than COWEN, Justice, says it did in The People vs. Tioga Com. Pleas. For the purpose of deciding that point the court assumed the mortgage to be valid and free from objection, and Gardner to be a trespasser in causing the property to be levied upon and buying it in at the constable's sale. This being so, he acquired no title whatever to the property as against the mortgagee and his assigns. Nothing is better settled than that a trespasser acquires no title to the property he has unlawfully converted. Even after action the title does not vest in the trespasser until after recovery of the damages and satisfaction. The property Robinson agt. Weeks. was levied upon in July, before the mortgage became due. The mortgage was assigned to Adams the 12th of August, two days after it became due, and the title to the mortgaged property had vested absolutely in the mortgagee. Prior to the assignment to Adams, Hard, the mortgagee, might at his election, either have brought an action against Gardner for the tort, or retaken his property. He did not elect to bring his action but assigned the mortgage, which operated to transfer the title to the property to Adams, the assignee. Adams brought his action in March following, and the case shows that before suit he demanded the property of Gardner. Assuming the mortgage, therefore, to have been valid, there was nothing that I can perceive in the way of Adams maintaining an action in his own name. He had the title and the right of possession, and had demanded the property. The case on that point must have been decided upon the old English doctrine that a tortious taking of property changed the title, which has never been countenanced here. If nothing was assigned to Adams but the mere right of action for the tort, by the assignment of the mortgage, he must have brought his action in the name of Hard if he could have maintained it at all. But Hard had elected not to resort to his right of action, but to insist upon his title and sell it; and his assignee demanded the property and brought his action for the conversion in refusing to deliver it on his demand. It was not the case of the assignment of a tort, but of the sale and transfer of the title to personal property which another had tortiously taken. I agree that Adams could not have maintained the action in his own name without a demand and refusal after he acquired his title; because until then, as to his right, there had been no unlawful interfence with it (Hall vs. Robinson, 2 Comst. 296.) The case upon this point is without principle or authority to support it and should be overruled. HOYT, Justice, in Hall vs. Robinson, in commenting upon this case says, if the demand by Adams was after the assignment, as the case I think clearly shows," the decision can not be upheld either upon principle or authority. Robinson agt. Weeks. But in regard to the general doctrine of the assignment of torts. The case of The People vs. Tioga C. P. does not deny, but seems rather to concede that a tort for the taking or conversion of personal property may be assigned; and the case of North vs. Turner (9 Serg. & Rawle, 244), is cited with approbation, which expressly holds that such a claim may be assigned. It is a right which passes to an executor or administrator, and I think there can be no doubt that it may lawfully be assigned so as to vest the assignee with all the rights the assignor had at the time of the commission of the tort. The whole difficulty in regard to it seems to have arisen from not distinguishing between such cases and mere personal torts, as assault and battery, slander and the like, which die with the person, and which all the authorities agree can not be assigned. It will be seen on a moment's reflection, that the two cases or rights of action, although both coming under the general classification of torts, have really little resemblance to each other. In the latter case there is nothing to assign but a mere injury, which does not survive the decease of the injured party, and in which no person can be regarded as having any property. While in the former the right and title to property of which the assignor is still undivested, goes with the assignment and vests in the assignee, or in the executor or administrator, on the death of the party against whom the tort was committed. I take it an assignment of the cause of action would necessarily carry with it the assignor's title to the property, because by prosecuting the action to judgment and obtaining satisfaction, the title becomes vested in the wrong doer and the purchaser must be regarded as acquiring the whole right by the assignment and authority to prosecute. The assignment of a bond merely carries with it by operation of law the mortgage, and draws after it the land (Jackson vs. Blodgett, 5 Cowen, 202; Green vs. Hart, 1 John. 590; Martin vs. Mowlin, 2 Barr, 978). In the case of the death of a party whose property has been tortiously taken and who has not elected to bring his action in his life time, the title vests in the executor or administrator by |