[October, Opinion of the Court--Hoffman, J. under another form. This objection has some plausibility, but these simple illustrations serve to point out what is the true principle to be applied to the case at bar where the circumstances are more complicated. I think it plain, therefore, that before the assignment Kates could have acquired no lien on the vessel. Did the fact that he assigned his interest in the contract to his associate alter his position with regard to the owners, or enable him to acquire, or his associate to create, a lien in his favor on the barge? It appears to me that it did not. His assignment to his partner conveyed his rights, but it did not relieve him of his obligations under the contract. The contract was not by its terms assignable. The company bound itself to sell and give title to Bradbury and Kates on receiving from them the purchase money. It did not agree to sell to their assignee. It may have been content to assume the risk of liens created by them in favor of strangers, but it could not have contemplated the creation by them of liens in their own favor on a vessel of which they were the provisional owners, and were bound, by paying the purchase money to become the absolute owners. And this result could not be brought about either by a joint assignment to a third party nor by assignment by one associate to the other; neither could, without the company's consent, alter his relation to the vessel or to the company. That relation, as established by the contract, remained unaffected by any assignment to which the company did not assent, and which it was under no obligation to recognize for any purpose; and especially when resorted to for the purpose of enabling one of the purchasers to impair, and it might be wholly absorb, the value of the property by creating liens upon her in favor of his associate. My opinion is, that under the circumstances, no lien attached to the vessel in favor of the libellant. Under this view of the case, it will be unnecessary to consider the novel, and, perhaps, embarrassing questions, which arise. from the circumstance that the libellant's services were rendered to the barge and the steamer jointly; both ves sels being engaged in a common enterprise, in the prosecution of which both were necessarily used, and which were taken possession of by the libellant and his associate under nearly similar contracts, but with different owners. In the contract with the owners of the steamer they appear to have stipulated against the creation of any liens whatever upon her. Disregarding for the moment this latter provision, the inquiry arises: to which vessel did a lien for services rendered to both, attach; or did it attach to both? Could they be libelled jointly, or would each be liable for the whole? And if not for the whole, how should the proportionate liability of each be determined? Or, if the whole debt was collected from one, could contribution be claimed from the other? And if so, whether for one half of the amount paid, or for a part of it, proportioned to the relative values of the vessels? These and other questions naturally suggest themselves, but it is unnecessary now to attempt to solve them. The libel must be dismissed. MARCUS NEFF v. SYLVESTER PENNOYER. CIRCUIT COURT, DISTRICT OF OREGON. 1. TREBLE DAMAGES.-In an action for cutting or carrying away timber from the land of another to entitle the plaintiff to recover treble damages, judgment therefor must be demanded in the complaint, so that the defendant may be apprised of the claim, and the facts stated in the complaint must bring the case within the statute. (Or. Civ. Code, Sec. 385.) 2. DEFENSE TO CLAIM FOR TREBLE DAMAGES.-The defense to a claim for treble damages in such an action must be pleaded, and it may be either: 1. That the trespass was casual or involuntary; 2. Or that, at the time of the commission thereof, the defendant had probable cause to believe that the premises were his own, or those of the person under whom he acted; 3. Or that the timber was taken from uninclosed woodland for the purpose of repairing a highway or bridge. (Or. Civ. Code, Sec. 336.) 3. IRRELEVANT ALLEGATION.-An allegation which merely contains facts tending to prove either of said defenses is irrelevant and will be stricken out on motion. Opinion of the Court-Deady, J. [October, 4. COUNTER-CLAIM.-A counter-claim is substantially a cross-action and should contain nothing but the facts necessary to constitute it; and if any other defense is inserted therein it may be striken out. 5. TAXES PAID BY PARTY IN POSSESSION.-In an action for damages for withholding the possession of real property, if the defendant held under color of title in good faith adversely to the claim of the plaintiff, taxes paid by him upon the property during such withholding are a proper subject of counter-claim. 6. DAMAGES FOR WITHHOLDING POSSESSION AND DEFENSE THERETO.— In action to recover damages for wrongfully withholding the possession of real property, the plaintiff may allege and recover for any particular waste or injury committed by the defendant thereon during his possession, or he may omit all claim other than that arising from such waste or injury, but he cannot by so doing preclude the defendant from showing that the alleged waste or injury was committed while he was in the possession of the premises, claiming title thereto, in good faith, adversely to the plaintiff, and thereby prevent him from making any defense to which he may be entitled under these facts. 7. IMPROVEMENTS - COUNTER-CLAIM FOR.-To enable a defendant to maintain a counter-claim for the value of improvements made upon the premises of another, it must appear therefrom that the improvements are affixed to the freehold and still existing, and that they better the condition of the property for the ordinary purposes for which it is used; and that they were made while the defendant, or those under whom he claims, were in possession under color of title, in good faith, adversely to the claim of the plaintiff. (Or. Civ. Code, Sec. 318.) 8. SAME SUBJECT.—A counter-claim not containing these allegations, but only a statement of facts tending to prove them, will be stricken out as irrelevant. Before DEADY, District Judge. Motion to strike out counter-claim. M. W. Fechheimer, for the motion. H. Y. Thompson, contra. DEADY, J. This action is brought by the plaintiff as a citizen of California, against the defendant, a citizen of the State of Oregon, for wrongfully entering the plaintiff's close -a tract of land situated in Multnomah county, Oregonon May 10, 1869, and on divers other days and times between that day and March 9, 1875, and then and there cutting and carrying away the trees and timber therefrom, and converting the same to his own use, and for then and there 1875.] Opinion of the Court-Deady, J. pulling down and destroying a certain log dwelling-house thereon; and also for removing and destroying a certain fence inclosing an orchard growing thereon, whereby stock and cattle entered upon said orchard and destroyed the same, to the damage of the plaintiff $4,600. The answer of the defendant consists of a denial of the material. allegations of the complaint, except the one concerning his own citizenship, and a counter-claim styled "a further and separate answer," in which it is alleged that the defendant entered into the peaceable possession of the premises on January 14, 1867, as a purchaser at a sale made upon an execution, issued out of the Circuit Court for the county and State aforesaid, upon a judgment wherein J. H. Mitchell was plaintiff and the plaintiff herein defendant, and that he occupied them in good faith as such purchaser until 1875, when he was evicted therefrom upon a judgment of this court; that during such occupation he paid $121.55 of taxes duly levied upon said premises and erected thereon a board cabin which still remains, at a cost of $35; that he removed certain fallen and standing timber from said premises for the purpose of clearing a portion of them for pasture, and that said clearing was a benefit to the premises, and worth the sum of $600. The plaintiff moves to strike out four separate parts of the counter-claim, which taken together constitute the whole of it, as being irrelevant and redundant. The first allegation asked to be stricken out is the one concerning the circumstances under which the defendant entered and occupied the premises. On the argument it was assumed that this allegation was inserted in the counter-claim to show that the trespass complained of is not within section 385 of the Or. Civ. Code, which provides, that in case of trespass by cutting or carrying away "any tree, timber or shrub on the land of another *** without lawful authority, *** if the judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor as the case may be." Counsel for the plaintiff disclaims the right to recover treble damages in this action, the demand in the complaint being for single damages only. Opinion of the Court-Deady, J. [October, To entitle the plaintiff to recover treble damages, judgment therefor must be demanded in the complaint, so that the defendant may be apprised of the claim, and the facts stated must bring the case within the statute. (Newcomb v. Butterfield, 8 John, 345; Chapman v. Emerie, 5 Cal., 239; Mooers v. Allen, 2 Wend., 247.) The case made by the complaint being for single damages the allegation in question is so far irrelevant and ought to go out. But if it had been otherwise the allegation would be irrelevant. Where an action is brought for cutting timber, on the land of another, without authority, the defense against a claim for treble damages must be pleaded, and it may be either: 1. That the trespass was casual or involuntary; 2. Or that, at the time of the commission thereof, the defendant had probable cause to believe the premises were his own or that of the person under whom he acted; 3. Or that the timber was taken from uninclosed woodland for the purpose of repairing a highway or bridge. (Or. Civ. Code, Sec. 336.) The second one of the defenses appears to have been in the mind of the pleader when this allegation was drawn, but instead of alleging directly that at the time of cutting the timber the defendant had probable cause to believe the premises were his own, the circumstances of the purchase and entry are detailed, from which it may be inferred that he had such cause so to believe. This is pleading the evidence--the probative facts instead of the ultimate ones. Therefore, as a pleading it is irrelevant. Besides, this allegation considered as a defense to a claim for treble damages, is improperly inserted in a counter-claim. It should have been pleaded separately. This counter-claim for taxes paid and improvements made upon the premises is in no way dependent upon the plaintiff's claim for treble damages or the defendant's defense to it. A counter-claim is substantially a cross-action and should not contain anything but the facts necessary to constitute it. If the defendant has any other defense to the action, either absolutely or as to the demand therein for treble damages, he must plead it separately. As to the payment of taxes by one who holds the prem |