*404The opinion of the Court was drawn up by
Whitman C. J.It does not seem to be controverted, that the plaintiffs were, at the time the timber in question was felled, the mortgagees of the land on which it had been standing and growing. And, as the -law is settled in this State, (Smith v. Goodwin, 2 Greenl. 173) whoever cut and carried it way, without authority from them, was a trespasser; and could thereby acquire no property in it. The property in the timber would still remain in the mortgagees, who might pursue and recover it, or its value, of any one who might become possessed of it; or undertake to convert it to his own use. The two McKusicks, who cut and hauled it, were liable to an action quare clausum, &c. and might be declared against, after having taken it away, in trespass de bonis asportatis, or trover; as might also any person concerned in aiding them in their tortious acts.
The defendant, as he proved by his witness, Royal McKusick, and, as he admitted, sawed and manufactured into boards six hundred and fifty thousand feet of the timber. He would, however, excuse himself upon the ground, that he did so upon being hired as the servant of one of those who cut it. But it appeared further, by the testimony of the witness introduced by him, that he furnished supplies, and aided by paying the workmen, under his employer, in cutting and hauling the timber, until his claim therefor, and for sawing, amounted to $3000, for which he was reimbursed nearly to the whole amount from the proceeds of the timber, one hundred thous- and feet of which at least he sold himself. He then stands responsible to the plaintiffs, in this action, if not exonerated by the matter set up in defence; as to which the burthen of proof rests upon him.
The defence set up is, that the person, under whom he acted, was licensed by the mortgagors to cut the timber, and to manufacture it into boards, upon certain terms and conditions ; and the evidence, if properly admissible, tended to show, that such was the fact. But the license was granted long after the conveyance in mortgage to the plaintiffs; and so, in strict*405ness, was void. But the defendant goes further, and proves, that the plaintiffs took an assignment of the rights of the mortgagors, arising under the license. This, however, was not done until the timber in question had been cut, hauled and nearly all manufactured and disposed of by the defendant, and the person under whom he pretended to act. The right of action against the defendant as a tort feasor, had long before become fixed in the plaintiffs; and could not be removed but by a release or accord and satisfaction.
The defendant, nevertheless, contends, that the taking of the assignment was a ratification of the authority of the mortgagors to grant the permit, and a waiver of the rights of the plaintiffs under their mortgage. If it was so it must have been by implication. There is no proof of any express agreement to that effect. And it is difficult to perceive how the rights of the mortgagees, which had become fixed long prior to the assignment, could thereby, without an express agreement for the purpose, become annulled.
There was, besides, plenary evidence in the case, that the plaintiffs continually asserted these rights; and that the agent of the mortgagors, at the instigation of the person to whom the permit had been granted, became extremely solicitous, that the mortgagees should accept the timber share, that is, the value of the timber when standing, according to the terms of the permit; and it is rendered highly probable, by the evidence in the cause, that they finally consented to avail themselves of a remedy, if practicable, in that mode; and to be content upon receiving the timber share according to the terms of the permit; and, if they had succeeded, it would have amounted to an accord with satisfaction. But the expedient proved wholly fruitless; and hence their original cause of action remained unaffected. They were but in the condition of one who takes additional or collateral security for a debt due to him. The one failing he might resort to the other.
It is therefore, perfectly clear on the one hand, that the plaintiffs made out a good case; and on the other, that the defendants’ defence utterly failed; and a new trial must be granted.
*406The view, which we have thus taken of the case, renders it unnecessary that we should go into a consideration of the exceptions, ingeniously taken and argued, in reference to the rulings of the presiding Judge, and his instructions to the jury.
New trial granted.