Mr. Chief Justice BeaN
delivered the opinion.
The jury found from the testimony, under the law as •given to them by the court, that the foreclosure of the chattel mortgage by the defendants was premature, because the debt secured thereby was not then due and none of its provisions had been broken at the time, and therefore the foreclosure proceedings were irregular and void and did not constitute a defense to this action. There are no errors predicated upon this branch of the case. The only questions necessary for us to consider arise on the rulings of the trial court that the defendants could not show the amount of the mortgage debt in mitigation of damages, and in entering judgment for double the amount of damages assessed by the jury.
1. There is a line of authorities holding that, if a chattel mortgage is irregularly foreclosed in good faith and the property sold to another than the mortgagee, the mortgagor may treat the transaction as a conversion of the property by the mortgagee and sue accordingly, and in such case the measure of damages is the difference between the value of the property at the time of the conversion and the amount of the mortgage debt; 2 Cobbey, Chattel Mtgs. § 1036; 2 Sedgwick, Meas. Dam. (7 ed.) p. 391; Burton v. Randall, 4 Kan. App. 593 (46 Pac. 326); Cushing v. Seymour, 30 Minn. 301 (15 N. W. 249); Torp v. Gulseth, 37 Minn. 135 (33 N. W. 550); Powell v. Gagnon, 52 Minn. 232 (53 N. W. 1148.); Bryan v. Baldwin, 52 N. Y. 232. But the defendants cannot invoke this rule, because they have not pleaded the amount due on the mortgage in mitigation of damages. At common law *506a defendant was entitled to give in evidence under the general issue any matter constituting a valid defense, and following this rule, some of the cases cited hold that in an action of trover a defendant may give facts in mitigation of damages without pleading them; but our statute has changed the common-law rule and substituted for the general issue an answer which must contain a general or specific denial of the material allegations of the complaint intended to be controverted and a statement of any new matter constituting a defense or counter claim : B. & C. Comp. § 73.
2. Under this statute the defendant can only put in evidence under the denials such facts as go to disprove the plaintiff’s cause of action. If he intends to rest his defense upon any other matter, such as payment,' estop-pel, former adjudication, legality of consideration, justification, contributory negligence, the negligence of a fellow-servant and the like, it must be pleaded: Heatherly v. Hadley, 2 Or. 269 ; Rugh v. Ottenheimer, 6 Or. 231 (25 Am. Rep. 513); Konigsberger v. Harvey, 12 Or. 286 (17 Pac. 114); Buchtel v. Evans, 21 Or. 309 (23 Pac. 67); Johnston v. Oregon Short Line Ry. Co., 23 Or. 94 (31 Pac. 283); Jameson v. Coldwell, 23 Or. 144 (31 Pac. 279); Clark v. Wick, 25 Or. 446 (36 Pac. 165); Duff v. Willamette Steel Works, 45 Or. 479 (78 Pac. 363, 668). And so with the defense of mitigation of damages. Such a defense is in effect a plea in confession and avoidance. It amounts to an admission of the cause of action alleged in the complaint, but asserts that plaintiff cannot recover the entire damages sustained by him on account thereof, because of extraneous matter which does' not contradict any fact necessary to be established by the plaintiff to authorize a recovery. Now, when we examine the answer in this case, we find that it attempts to set up a chattel mortgage and the foreclosure thereof as a complete defense or bar *507to the action. It may be doubted, therefore, whether it could under any circumstances be treated as a partial defense by way of mitigation of damages: Webb v. Nickerson, 11 Or. 382 (4 Pac. 1126).
3. But, waiving this point, the answer does not contain facts sufficient to constitute such a defense. It is not alleged that the defendants were the owners of the mortgage debt at the time of the alleged conversion, nor that any part of the debt secured by such mortgage was unpaid, nor that the sheep described in the mortgage were the same sheep mentioned in the complaint. These are all matters of essential importance in a plea in mitigation of damages. Without them the plaintiff would not be informed of the facts intended to be relied upon as a defense and could not be prepared to meet them on the trial. There was no error, therefore, in the ruling complained of.
4. The remaining assignment of error is predicated upon the action of the court in rendering judgment against the defendants for double the amount of damages as found by the jury. This judgment was based on Section 1152 of the statute which provides :
“If any person shall, before administration is granted, embezzle, alien, or in any way convert to his own use any of the property of a deceased person, he is liable to the executor or administrator in double the amount of damages which may be assessed therefor.”
If the rule governing actions under statutes giving aggravated damages is to be applied to this section, the complaint does not state facts sufficient to entitle plaintiff to a recovery thereunder, because it does not recite the statute nor in any way allude to it. The general rule is that when aggravated damages are given by a statute, “the demand for such damages must be expressly inserted in the declaration, which must either recite the *508statute or conclude to the damage oí the plaintiff against the form of the statute”: Chipman v. Emeric, 5 Cal. 239 ; Neff v. Pennoyer, 3 Saw. 495 (Fed. Cas. No. 10,085); Livingston v. Platner, 1 Cow. 175.
5. There are two sections of the statute providing for actions by an executor or administrator against persons who intermeddle with, the property of a decedent: Sections 385 and 1152. By the former the action is “ for the value of all property so taken or received, and for 'all injury caused by his [defendant’s] interference with the estate of the deceased”; and by the latter the defendant is made liable for double the amount of damages which may be assessed against him. It is but reasonable, therefore, that, if an executor or administrator desires to proceed under Section 1162, he should so state in his complaint, so that the defendant may be advised of that fact; -and, if he does not, the action should be treated as brought under Section 385, to recover the actual damages sustained.
6. But, however this may be, we are of the opinion that Section 1152 does not apply to a case where the defendant acted in good faith under color of legal, right, supposing he had title to the property or a right to enforce a lien thereon, though he should subsequently be unable to establish such title or right. The statute is highly penal in its consequences, and was evidently intended to punish those who might wrongfully or in bad faith interfere •with; convert to their own use, or dispose of the property of a deceased person, by mulcting them in double damages; and its language should, we think, be so construed. To subject a defendant to the penalty given by the statute, it should appear that he was an intermeddler, and acted from wrong motives or in bad faith; otherwise, the executor or administrator should be satisfied with the ordinary remedies given him bylaw : Roys v. Roys, 13 Vt. *509543; Batchfelder v. Tenney, 27 Vt. 578. It is not alleged, nor does it appear, that the defendants did not act in the utmost good faith in attempting to foreclose their mortgage. They may have been ill advised, or may have mistaken their rights; but, until it is made to appear that they acted from wrongful motives or in bad faith, the plaintiff is not entitled to recover double damages from them.
The judgment of the court below will therefore be reversed, and the cause remanded for such further proceedings as' may be proper, not inconsistent with this opinion.
Reversed.