James Boies vs. Billings Blake, 13 Me. 381

After a continuance, the opinion of the Court was drawn up by Weston C. J. James Farnsworth, the agent of the Passa-maquoddy Indians, had authority to dispose of the hay in controversy. The instrument in writing, between him and John Dudley, which is a part of this case, is evidence that when the plaintiff went in and cut the hay, he had, for so doing, the license and consent of Farnsworth. And it is also evidence, that Dudley consented thereto. This may well be understood to have been so expressed, in consequence of a previous understanding between Farnsworth and the plaintiff.

By the written agreement referred to, a specific portion of the grass, by a description well understood, is set apart for his benefit. It is equivalent to a declaration of trust to that extent in his favor. The plaintiff, however, was to pay a reasonable compensation to Dudley. This was offered by the plaintiff, but Dudley refused to receive it. It has been insisted, that the actual receipt of the money by Dudley, was necessary to entitle the plaintiff to the hay, to sustain which position, the counsel for the defendant has cited the case of Hunter v. Rice, 15 East, 99.

The plaintiff there, and one Sharpe, had entered into bonds to submit to the award of arbitrators. They awarded among other things, that the plaintiff should have certain hay belonging to Sharpe, upon being paid or allowed a certain sum of money. The money was tendered by the plaintiff, but refused by Sharpe, who declined to execute the award. The question was, whether the property in the hay passed by the award.

The court held, that it did not and that the only remedy for the plaintiff was upon the award, but added that if Sharpe had received the money, it would have been such an assent on his part to the award, as would have amounted to a transfer of the property. Here the receipt of the money was not necessary to prove that either Farnsworth or Dudley had consented, that the plaintiff should have the hay. That had been before distinctly expressed in the written agreement. The tender made by the plaintiff, so far as it affected the transfer of the hay, was equivalent to payment.

From the evidence in the case, it may be fairly inferred, that Farnsworth and Dudley had agreed to sell the hay to the plaintiff, for a reasonable compensation, to be paid to Dudley, which was tendered by the plaintiff^ who thereupon took the hay. It is further urged, that the plaintiff is a stranger to the agreement, made between Farnsworth and Dudley, and cannot take advantage of any thing there stipulated for his benefit. In Martyn v. Hinde, Cowper, 437, the plaintiff sustained an action against the defendant, rector of St.

Anne’s, Westminster, upon a certificate addressed by the defendant to the Bishop, wherein he nominated the plaintiff his curate, and promised to allow him £50, per annum, until otherwise provided for. And in Marchington v. Vernon, 1 Bos. & Pul. 101, note b. Buller J. says, “ if one person makes a promise to another, for the benefit of a third, the third may maintain an action upon it.” But if there were difficulties attending the plaintiff’s title to the hay, he had cut it, and had it in actual possession. He might therefore maintain trespass against a wrongdoer for taking it away.

By the statute of 1824, ch. 271, no citizen or subject of any foreign government, can be permitted to purchase, cut or carry away any trees, timber, or grass standing or growing on the township, reserved for the Passamaquoddy Indians; and the agent, who presumes to permit it, is subject to a forfeiture.

And accordingly in the agreement between Farnsworth and Dudley, it is provided, that Dudley is not to allow any foreigner to have any control or management, directly or indirectly, either in the hay or the timber, which Dudley was thereby permitted to cut, under the penalty of being considered a trespasser from the beginning. And yet it appears, that Dudley assigned all his right, title and interest in that instrument, and the permit it contained, to the defendant, who was then a resident in the British province of New-Brunswick, and in the employment of one Marks, a British subject.

This was not only in violation of law, but in direct violation of the express terms of the contract, under an asssignment of which the defendant justifies. We are very clear, that under these facts, the defendant has made out no title whatever to the hay in controversy ; and that as against him, the possession of the plaintiff is sufficient evidence of title, to enable him to maintain the action. Judgment on the verdict.