32 imnsaar. nmronrma.
property of the United States, this defense of good faith goes to the claim
‘ for damages beyond the value of the timber in the tree, and consists in
the allegation that the defendants cut and carried away the timber, sup-
posing that the land on which it grew belonged to the Northern Pacific
Railway Company, under whose license they were acting, wherefore they
are not willful trespassers, nor liable for the enhanced value of the prop-
erty. There has been some confiict of opinion in the courts as to whether
a partial defense, as a matter in mitigation of damages, ought to be
pleaded in the answer, or given in evidence under` the denials. Gilbert
v. Rounds, 14 How Pr. 46; Saltus v. Kipp, 12 How. Pr. 342; Lone v. Gil-
bert, 9 How. Pr. 150; Kneedler v. Sternberg, 10 How. Pr. 67; Bush v.
V Prosser, 11 N. Y. 347; Mclfyrring v. Bull, 16 N. Y. 297;- Folamd v. John-
son, 16 Abb. Pr. 235. The last three of these cases require the matter
to be pleaded.
In my judgment, the matter may and ought to be pleaded. The pro-
vision in the Code of Civil Procedure (section 71) which connnes the
answer to denials, and new matter constituting a defense or counter-claim
_ to the action, ought to be so construed as to admit such rmatter, where
it is only an answer to a part of the cause of action,——as a part payment.
The word "defense" is a term of art. It comes from the Norman French,
and was used in common-law pleading in the sense merely of denial.
Rap. & L. Law Dict. "Defense;"· 1 Chitty, Pl. 462. ~ Any new matter,
then, whichoonfesses and avoids the plaintiff’s cause of action, either in
whole or in part, and so far denies it, ought to be pleaded as a defense.
Bush v. Prosser, 11 N. Y. 347; Mclfyring v. Bull, 16 N. Y. 297; Bliss,
Pl. § 327. The spirit and purpose of the Code is that the parties shall
state in the pleading the facts of the case,-not the evidence of_them,·——
so that the controversy shall be narrowed to the real matter in dispute,
. and the issue shall involve nothing but what is directly aiiirmed on the
one side, and denied on the other, and concerning which the parties
may therefore be prepared to furnish proof on the trial.
The demurrer to this defense is based on the proposition that neither
good faith nor honesty of purpose is a defense to this action; citing 6
Wait, Act. & Def. 129. It is admitted that such faith or purpose is not
a defense to the simple trespass,—the breaking ofthe plaintiffs close,—or
_ the taking and converting to the defendant’s use the plaintiffs timber
growing therein. But they ought to be and are a defense to the claim
made by the plaintiff to recover as damages for such trespass and con-
version, not only the value of the timber standing in the tree, but the
enhanced value put on it, at the expense of the defendants, in removing
_ it to Portland, and there making it into lumber. This defense covers at
least twenty-three twenty-fourths of the damages claimed in this case,
_ and, if established on the trial, will be a bar to the recovery thereof. The
demurrer to it is overruled.
In support of the demurrer to the defense of title in the railway com-
pany, and a license therefrom, counsel contends that the cession to the
Northern Pacific, by the act of July 2, 1864, (13 St. 365,) is not a pres-
ent grant, but only a legislative compact that, on the construction of the