Heine v. Anderson. remedy he chose could be enforced only by the assignors. He is, therefore, before the court as the assignee of a tort. That he is such assignee is apparent from the fact that it is through the bill of sale alone that he has acquired rights. IV. The judge should have charged that no demand and refusal had been shown. The verdict should be set aside with costs. BY THE COURT.-None of the objections to the plaintiff's recovery are tenable. The answer denied property in the plaintiff, and as he had never been in the actual possession of the goods, he could only establish his title by proving a transfer from the former owner. The bill of sale was therefore properly admitted in evidence, although not set forth in the complaint. In an action of this nature, a general averment of ownership in the complaint is sufficient. The goods, at the time of the sale, were, in judgment of law, in the possession of the defendant, as the agent or bailee of the former owners. Uhlendorf, one of the owners, had requested him to retain them for a time, and he had agreed to do so; the sale, therefore, to the plaintiff, being made by an instrument in writing, gave him an immediate and valid title, without a formal delivery of the possession. From the time of its execution, the possession of the defendant became that of the plaintiff. As it does not appear that before the sale there had been any conversion of the goods by the defendant, or any denial by him of the title of the former owners, the sale was not a transfer of a mere right of action but of the goods themselves, and from that time the plaintiff was entitled, as owner, to demand their restoration. . A demand and refusal were sufficiently proved by the testimony of Mr. McGay, and as the question was submitted to the jury, were found by them in the verdict which they rendered for the plaintiff. Had not the proof been given, the admission of the defendant, that he had sold the goods, was sufficient to render him liable. As there was no proof that this sale was made after notice to the plaintiff of whose rights as owner he Beach v. Berdell. had full notice, it was plainly wrongful. Whether the defendant had a lien upon the goods for the price of their safe-keeping, it is unnecessary to consider, for, as we understand his testimony, he never demanded a compensation as a matter of right, and if he really meant to insist upon a lien, he was bound to make a positive claim, if not to state its nature and amount. The plaintiff is entitled to judgment, with costs. BEACH V. BERDELL. In determining upon a demurrer, whether matters separately pleaded constitute a defence, the court will take into consideration all those parts of the answer which precede that which is covered by the demurrer. The sufficiency of the defence may, in many cases, depend upon the fact, whether the allegations in the complaint have been admitted or denied. As a general rule, it is a good defence to an action to recover the value of personal property, as unjustly detained, that it had been delivered to the true owner before the commencement of the suit. Whether, when the defendant is a bailee, he can set up this defence against his bailor-Quere ? Demurrer overruled with costs. (Before OAKLEY, Ch. J., CAMPBELL and EMMET, J.J.) June 23; July 2, 1853. APPEAL from an order at Special Term, overruling a demurrer to a part of the defendant's answer. The following are the pleadings. City and County of New York, 88. HOMER P. BEACH, of said City, the plaintiff in the above entitled action, by John G. Vose, his attorney, complains of Robert H. Berdell, the said defendant, and shows to this honorable court, upon information and belief, that in or about the month of August, in the year 1851, at the city and county aforesaid, one Abner W. Spooner being the owner of a certain Texas Beach v. Berdell. Bond, (a true copy whereof is hereunto annexed, marked Schedule A, and which said plaintiff prays may be deemed part of this complaint,) by his agent or broker, at the special instance and request of the said defendant, deposited with him the said Texas bond for the purpose of enabling the said defendant to ascertain the value thereof, and that the said defendant then and there, in consideration that the said Abner W. Spooner would so deposit with him the said Texas bond as aforesaid, promised and agreed to and with the said Spooner, that upon the ascertaining the value thereof, he would either purchase the same from the said Spcoror and pay him the value thereof, or would return the game to him upon demand. And the said plaintiff, upon information and belief, further says, that the said Abner W. Spooner afterwards and in or about the same month of August, A. D. 1851, duly demanded from the said defendant the said bond or the value thereof; but the said defendant, though admitting that the said Texas bond was in his custody or under his control, utterly neglected and refused either to return the said bond or to pay the value thereof to the said Spooner. And the said plaintiff further says, that by reason of the premises the said Abner W. Spooner has suffered damages to the amount of four thousand six hundred and forty-five dollars. And the said plaintiff further says, that afterwards and on or about the thirteenth day of May, in the year 1852, the said Abner W. Spooner for a good consideration paid to him therefor by the said plaintiff, by an instrument in writing under his hand and seal, duly executed and delivered, did sell, assign, transfer, and set over unto the said plaintiff the said Texas bond, together with all the right and rights of action of the said Spooner against the said defendant, or against any other person whomsoever, to recover the value of said bond or the possession thereof, with full power to sue for, collect and discharge, or sell and assign the same, as by reference to the said instrument of assignment when produced will more fully appear. And the said plaintiff further says, that afterwards, and on or about the eighteenth day of May, 1852, he gave to the said defendant due notice of the aforesaid assignment, and demanded from the said defendant the said bond or the value thereof. Beach v. Berdell. But the said defendant, though admitting that the said bond was in his possession or under his control, utterly neglected and refused to deliver the same, or to pay the value thereof, to the plaintiff. And the said plaintiff further says, that the value of the said bond, at the date of the commencement of this action, was the just and full sum of four thousand nine hundred and eighty dollars, to which amount the plaintiff has suffered damages by reason of the neglect and refusal of the said defendant to perform his said promise herein before set forth. Wherefore the said plaintiff asks that his damages may be assessed at four thousand nine hundred and eighty dollars, for which amount, with lawful interest from the sixth day of July, in the year 1852, he demands judgment against the said defendant. No. 144. SCHEDULE A. Public Debt of the late Republic of Texas. 2nd Class. This is to certify that E. W. Moore, administrator of J. K. Lothrop (dec'd), has, under the provisions of an act of the Legislature of the State of Texas, entitled an act to provide for ascertaining the debt of the late Republic of Texas, approved 20th March, 1848, filed with the Auditor and Comptroller a claim for services as an officer in the Texan navy, amounting to three thousand seven hundred and sixty-six dollars, which is sufficiently authenticated to authorize the auditing of the same under the laws of the late Republic of Texas. The said claim, according to the data before us, is worth three thousand seven hundred and sixty-six dollars, in par funds, as having been at that rate so available to the Govern ment. In testimony whereof, we have hereunto set our hands and affixed our seals of office, at Austin, this 11th day of April, 1849. [L. 8.] Signed, J. B. SHAW, Comptroller. Beach v. Berdell. 1. The HOMER P. BEACH v. ROBERT H. BERDELL.-Answer. defendant, Robert H. Berdell, by Woodbury & Churchill his attorneys, answers the complaint in this action, and says that the said Texas bond in said complaint mentioned was deposited with him, the month of August, 1851, by one Montagnie, for certain purposes then agreed upon by and between the defendant and said Montagnie, and this defendant denies that the said bond was then the property of or owned by said Spooner, in said complaint mentioned, and that the same was deposited with the defendant by an agent or broker of said Spooner, and that any such promise or agreement was made by the defendant to and with said Spooner, as is stated and alleged in said complaint. 2. The defendant denies that said Spooner has sustained damages, by reason of the premises, to the amount stated in said complaint, or to any amount. 3. The defendant says that he has not sufficient knowledge or information to form a belief whether the said Spooner, on or about the 13th day of May, 1852, or at any time, executed to the plaintiff, as stated in the complaint, the instrument in writ ing or assignment therein mentioned, or any instrument in writing or assignment, and he denies that the said plaintiff, in the said month of May, or at any time, had any right, title or interest in or to the said Texas bond or the value thereof, and he denies that the value of the said bond, at the time of the com mencement of this action, or at any time, was the sum of $4,980.94, as stated in the complaint, and that said plaintiff has sustained damages to that amount, as alleged in the complaint, or to any amount. 4. The defendant denies that the plaintiff gave him due notice of said alleged assignment on or about the eighteenth day of May, 1852, or that he then demanded from the defendant the said bond or the value thereof, or that the said defendant then admitted that said bond was in his possession or under his control. 5. The defendant further answering says, that the said J. T. K. Lothrop, in said bond mentioned, was at the time of his death a citizen and a creditor of the Republic of Texas; that he |