
    James Boies vs. Billings Blake.
    By the stai. of 1824, ch. 271, a sale to a foreigner of trees, timber or grass standing or growing on the ¡Si ssa/m a ¡pro d thj Indian Township, whether nia.de hy the agent, or hy a citizen of this State who had purchased of the agent, is void, and transfers no title to such foreigner.
    Where the Indium, agent, F., g-ave to D. a written license to cut all the grass on such township, with a provision in the license, that it was understood, that 0. was to permit B. to cut a certain specified portion thereof for a reasonable compensation; and B. offered to D. such reasonable compensation, wliore-fused to receive it, and afterwards transferred his right and interest under the license to a foreigner; B. cut the grass, made it into hay, and stacked it: it was huid, that B. had such interest in the hay, as would enable him to maintain trespass against a foreigner acting under such transfer.
    This was an action of trespass for a certain quantity of bay cut on the Muntly brook meadow in the Indian township in this County, and was tried before Weston C. J.
    
    It appeared, that the plaintiff bad cut and stacked the hay on that meadow in the season of 1832, and that the defendant, who was a resident in the Province of iSew-Brunswick, and in the employment of one Mariis, a British subject, took and carried away the hay the winter following. It did not certainly appear, when the hay was cut, but it was not proved to have been cut in the month of August. The plaintiff claimed a right to cut and take the hay by virtue of a reservation in the permit, license, or sale, dated July .14, 1834, given by James Farnsworth, the Indian agent, to one Dudley. By this the agent gave Dudley “ permission to go on to the Indian township and cut and commit to his own use all the grass usually denominated meadow hay.” The writing contained these provisions. “ It is further understood, that the said Dudley is to permit James Boies to cut two small meadows on the Muntly brook for a reasonable consideration,” and “ the said Dudley is not to allow any foreigner to have any control directly or indirectly of the management of said premises under the penalty of being considered a trespasser from the beginning.” On the 29th of August, 1832, Dudley sold to the defendant “ all his right and interest” by the permit or license of tho Indian agent of July 14, 1832. It appeared, that the plaintiff, prior to the 29th of August, 1832, had offered to pay to Dudley a reasonable compensation for the hay reserved for him, which Dudley■ declined to receive. The defendant relied on the transfer of Dudley to him, of August 29, 1832. The jury returned their verdict for the plaintiff, which was to be set aside, if the Court should be of opinion, that the action could not be maintained.
    
      Bridges, for the defendant.
    The plaintiff brings an action of trespass, and to sustain it, he must have a right to the immediate possession of the property, and must show a direct and immediate tortious taking. 5 Dane, 533; Graham v. Peat, 1 East, 244. The most favorable case for the plaintiff is, that Farnsworth, the Indian agent, sells the grass on the Indian township to Dudley, with this provision, that Dudley should permit Boies to have this grass for a reasonable, compensation to be paid by him to Dudley. The grass then is Dudley’s, and he did not sell it to Boies, but to Maries, under whom the defendant acted. The tender by the plaintiff to Dudley did not vest the grass in him. The assent of Dudley was necessary, and that assent was never given. No person can maintain an action of trespass in consequence of a contract between two other persons. Hornbeck v. Westbrook, 9 Johns. B. 73. A reservation in a deed to a stranger is void. A price was to be agreed on, and a sale to be made, before the plaintiff could acquire a property in the grass. 4 Dane, 109; Co. Lit. 47; Hunter v. Bice, 15 East, 99. The case finds, that the plaintiff offered to pay Dudley for the grass, but this was not a tender, or equivalent to it. If a tender would have transferred the property, it was not made. Brown v. Gilmore, 8 Greenl. 107*
    The statute says, that no grass growing on the Indian township shall be sold to a citizen or subject of a foreign country. Blake was but a mere resident in New-Brunswick, but if he was a British subject, and the contract void, it left the property in Dudley, and did not pass it to the plaintiff, and he cannot maintain the action.
    
      Chase, for the plaintiff.
    By the contract between the agent and Dudley, the latter was not entitled to this grass, except on the contingency, of the failure of the plaintiff, to whom it was reserved, to comply with the condition. The plaintiff did comply with the condition by offering to pay, as required in the contract. The reservation was binding before upon Dudley, and he could not avoid it without the consent of the other party, the agent. The offer to pay was an assent to the terms, and a compliance with them, on the part of the plaintiff. Dudley could derive no title to this grass, by violating the contract and disregarding his duty. If the defendant stood in the place of Dudley, he would have no defence. He must make out a title to take this hay first. He fails to do this, both because the acts of the parties gave the title to it to the plaintiff, and because Dudley had forfeited all right, if he ever had any, by the violation of the terms and spirit of his contract.
    The possession of the hay gives the plaintiff the right to maintain trespass against any, but the true owner. The defendant and Maries, under whom he acted, are British subjects, and could derive no title to this grass even from the strongest writing the agent himself could have given. The stat. of 1824, ch. 271, positively forbids such sale. But the contract and the law here both forbid it, for the agent inserted the provision of the statute on this subject, as a part of the contract. A contract made in violation of a statute is void-. Armstrong v. Toler, 11 Wheat. 298; Wheeler v. Russell, 17 Mass. It. 258.
   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.  