This burden cannot be shifted to the plaintiff because the timber was cut by an agent of the defendant. The presumption attaching to public officers that they act within the scope of their authority does not apply to agents of private persons sued for conversion.

THIS was an action of trover brought by the United States against the railroad company for the value of certain logs cut upon the plaintiff's lands. The declaration averred simply that the "defendant converted to its own use plaintiff's goods; that is to say, logs, lumber and timbers, manufactured out of trees theretofore standing and growing upon certain lands of the plaintiff," therein described.

The defendant pleaded not guilty, issue was joined, the case tried before a jury, which was instructed to return a verdict for the defendant.

The case was submitted upon an agreed statement of facts, which showed that the New Mexico Lumber Company cut from the lands described in the declaration 2,100,000 feet of lumber, which was furnished to and received by the railroad company for its use.

Upon these facts, and proof of the ownership of the lands, and of the value of the lumber cut, the plaintiff rested.

The defendant also offered an agreed statement of facts, in which it appeared that it was the successor of the Denver and Rio Grande Railway Company, and that by act of Congress of June 8, 1872, c. 354, 17 Stat. 339, and amendatory act of March 3, 1877, c. 126, 19 Stat. 405, "the right of way over the public domain and the right to take from the public lands adjacent thereto, stone, timber, earth, water, and other material required for the construction and repair of its railway and telegraph line," was granted to the Rio Grande Railway Company, of which the defendant was entitled to the benefit. The amendatory act of 1897 merely extended the time for the completion of the railway from five to ten years, and is not material to this controversy. Defendant also offered testimony showing the appointment of the New Mexico Lumber Company as its agent for the cutting of such timber for the purposes mentioned, and that the lumber delivered to the railroad company was furnished upon specific orders given to

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the Lumber Company as its agents. There were other facts included in the statement which are immaterial upon this writ of error.

No testimony was offered by either party tending to show whether the timber cut from the lands and received by the defendant was required for the construction and repair of its railway and telegraph line.

The jury, under instructions of the court, returned a verdict of not guilty, and judgment was entered for the defendant, which was affirmed by the Supreme Court. 66 Pac. Rep. 550.

The case was first tried in 1897, a verdict for plaintiff returned, the case carried to the Supreme Court, which reversed the judgment of the court below upon the ground of erroneous instructions with respect to the burden of proof. 9 N. Mex. 382.

Mr. Marsden C. Burch for the United States.

I. The lower courts erred in refusing to direct a verdict for plaintiff and in directing a verdict for defendant. All of the facts which would warrant such an instruction were not denied but were included in the agreed facts, viz., that the lands from which the timber was cut were lands of the United States; that the timber was delivered to the defendant for its use; and the value of the lumber. The defence relied upon was simply the two acts of Congress which were not so pleaded as to permit the defendant successfully to rely upon them. Assuming that the government's contention with respect to it is correct, the court should have directed the verdict as requested by counsel for the government. The direction to the jury to find a verdict for the defendant is based upon the holding that the burden of proof was upon the government to show that the lumber was not used for the purposes contemplated by the acts of Congress, under which the defendant claimed a license, the government not having introduced any evidence to show such a misuser.

II. In holding that under the plea of "Not guilty" the defendant could put the statutes of June 8, 1872, and March 3, 1877, in evidence under which the defendant sought to justify

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Argument for Defendant in Error.

the admitted taking by claiming the right to take timber for certain specified purposes. But no proper foundation was laid for such a defence by the mere "Not guilty." In trover, all matters of confession and avoidance must be specially pleaded. License from the plaintiff must be specially pleaded. 1 Chitty, 655. Where a party has occasion to rely on a private statute, he must set forth such parts of it as are material. Stephen on Pleading, par. 347. Leave and license must be specially pleaded. Ency. Pl. & Pr. vol. 1, p. 848.

The code of New Mexico prescribes certain short forms of pleas. Par. 53 gives a short form of a denial of the wrong alleged, "Not guilty." That was the plea adopted by the defendant. Par. 54 is a plea of confession and avoidance and is the one that should have been used. It is "that he did what is complained of by plaintiff's leave." The form given in par. 54 is a short form of special plea. For interpretation of like statutes, see Mack v. Lancashire Ins. Co., 1 Fed. Rep. 193; Walker v. Flint, 11 Fed. Rep. 31; Clifford v. Dam, 81 N. Y.

53.

III. The burden of proof was not upon the government to show that the timber taken was not used for purposes specified in the act of Congress; if it were the government would be compelled not only to prove negative matters, but matters resting peculiarly within the knowledge of the defendant. United States v. Gumm decided by New Mexico Supreme Court, 1889; Starkie on Evidence, par. 509; Commissioners v. Towle, 138 Mass. 490; Stone v. United States, 64 Fed. Rep. 667; Selma, Rome & Dalton Ry. v. United States, 139 U. S. 560; Northern Pacific Ry. v. Lewis, 162 U. S. 366, directly decisive of this question.

Mr. Joel F. Vaile, with whom Mr. Edward O. Wolcott, Mr. Charles Watermen and Mr. Edward L. Bartlett were on the brief, for defendant in error:

I. The declaration was modeled after the New Mexico statute and defendant drew its plea in accordance therewith. By express provision of the statute the plaintiff, under its declaration as framed, could raise any issue and introduce any

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evidence that could be introduced under any common law form of declaration in trover and conversion, and as defendant's plea was in form prescribed by the statute, it was sufficient to permit it to offer any evidence which could have been introduced under such form of plea at common law. As the action was modeled upon a special statute, the government cannot insist that the common law rules of pleading have any applicability whatever.

The sufficiency of the plea was reviewed upon the first writ of error in this case in the Supreme Court of New Mexico, and its sufficiency was necessarily, although not expressly, settled by the former decision. D. & C. R. R. Co. v. United States, 9 N. M. 382, 386. No contention was made as to the insufficiency of these pleadings upon the first trial and the decision on that first review concluded a consideration of it in the second review. 2 Van Vleet's Former Adjudication (1895), 1321 -22; Davis v. McCorkle, 14 Bush (Kentucky), 746; Henderson v. Henderson, 3 Hare, 115; Bradelbane v. Chandos, 2 M. & C. 711. The defendant's plea was sufficient at common law. 2 Greenleaf on Evidence, 96, par. 648; Nichols v. Minn., etc., Mfg. Co., 70 Minnesota, 528; Johnson v. Williams, 48 Vermont, 565, 570; Wallace v. Robb, 37 Iowa, 192.

II. The burden of proof was properly held to be upon the government to show that the timber was used for purposes not contemplated by the act of Congress.

The declaration was in the most general terms, and must in law be interpreted as charging a wrongful conversion of this property, and it was correctly decided that the "sole issue is, whether a wrongful conversion has been committed?" D. & R. G. v. United States, 9 N. M. 382-386.

III. The government must prove that the defendant exceeded the limits of its authority in taking the timber, or that having taken it for specified purposes, it was illegally misused. Until the plaintiff shows some element of wrongfulness, the defendant must be presumed to have acted within its lawful rights. In actions of trover the burden of proof is upon the plaintiff to show the wrongful taking. Cooper v. Chitty, 1 Burrows, 20, 31; Keyworth v. Hill, 3 B. & A. 687; Bur

roughs v. Bayne, 5 Hurls. & N. 296; Pillot v. Wilkinson, 2 Hurls & N. 72; 1 Greenleaf on Evidence (16th ed.), 148; 6 Wait's Actions and Defenses (1879), pp. 44, 70, 129, 142, 163, 221; Burnham v. Noyes, 125 Massachusetts, 85; Rast v. Dillon, 27 S. W. Rep. 497; Waring v. Penn. R. R. Co., 76 Pa. St. 491, 496; 1 Chitty on Pleading (16th Am. ed.), pp. 165, 172; Addison on Torts (Wood's ed. 1878), pp. 554, 556.

IV. In all cases of trover the plaintiff must first establish the wrongfulness of the conversion before he is entitled to put the defendant upon proof. Some authorities hold that the burden of establishing a special grant, right, license or privilege is upon the party asserting such grant, right, license or privilege, but they also hold that when such right or license is established, the presumption of law is that it has been properly exercised, and the burden is upon the other party. United States v. Reder, 69 Fed. Rep. 965. United States v. D. & R. G., 31 Fed. Rep. 889, was overruled in 34 Fed. Rep. 858, and 150 U. S. 1.

MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

As plaintiff alleged simply a conversion of logs, and defendant pleaded the general issue of not guilty, plaintiffs made a prima facie case by proving their ownership of the lands, the cutting and asportation of the timber, its value and its subsequent possession by the defendant. Here they were entitled to rest, and did rest. They were under no obligation to put in the special acts of Congress, nor could defendant compel their introduction by them.

By the laws of New Mexico of 1889 certain forms of pleadings are prescribed, including forms of pleas in actions for wrongs, one of which is that the defendant "is not guilty of the wrong alleged," and another "that he did what is complained of by the defendant's" (mistake for plaintiff's) "leave."

Whether it was competent, under the plea of not guilty, to introduce the special acts of Congress in question we do not