The opinion of the Court was by
Whitman C. J.This is an action of trespass for taking and carrying away a parcel of mill logs. The plaintiff' cut the timber, in the winter of 1834 — 5, on the land of certain proprietors, for whom one Stackpole was agent. Stackpole, as such agent, had contracted with one Bartlett to go on to the land, that winter, and cut and haul off timber ; which was to become his, only, upon his paying at a certain rate per M. for what he might cut. Bartlett thereupon, as if owner of the soil and timber upon it, contracted with the plaintiff to go on and cut upon similar terms. This was, by the contract of Bartlett with Stackpole, wholly unauthorized ; and the plaintiff, by going on and cutting, under such circumstances, became in strictness a trespasser; and could, therefore, under such circumstances, acquire no legal interest in the timber he might cut, as against the proprietors of the land. By his con*208tract he was not accountable to them ; and there was no privity between him and them. Yet to maintain this action he must” prove property in himself. To do this he contends, that the proprietors, or their assignees, have done certain acts, which recognized his cutting, as if under a license from them, upon the terms agreed upon between him and Bartlett; and upon an alleged payment to them, or their agent or assignee, for the timber cut upon those terms.
The defendants claim as vendees or assignees, under the proprietors of the land, and, as such, may maintain their de-fence, unless the plaintiff’s allegations are sustained by his evidence; to do which the burthen of proof is upon him-. It appears that one Riñes, with certain other individuals, were co-tenants of the land on which the timber was cut; and that those individuals, on the fifteenth day of May, 1835, transferred and sold to him fifteen sixteenths of the timber cut during the previous season for cutting, “ under the direction of Richard H. Bartlett,” with whom the plaintiff had contracted as before stated. Riñes, owning the other sixteenth part, thus became the owner of the whole, subject to such rights as pertained to those, who had cut the timber, whatever they might be.'
There was evidence introduced by the plaintiff tending to show, that, while Riñes so owned the -timber, he recognized the right of the plaintiff to become the owner of it, upon his paying what, among lumbermen, has acquired the appellation of stumpage, viz., the value of the timber when standing; and of such recognition there does not seem to have been any question made at the trial. The plaintiff further introduced evidence, which he contended shew also, that Riñes received full satisfaction for the value of the timber as estimated before it was cut. It appeared, that Bartlett had taken a negotiable draft of one Isaac J. Stevens on one Nathaniel Stevens for that amount, but the evidence tended to show that it was with an express understanding that, if not accepted by the drawee, the claim upon the timber was not to be affected; that the same draft, not having been accepted, Bartlett in*209stituted a suit thereon against the drawer to recover the amount drawn for, and attached the logs in question as the property of the drawer; that Riñes afterwards, while the action was pending upon the draft, took an assignment of it from Bartlett ; and gave him, as he (Hines) testified, a receipt in full for the stumpage. In this wise, as the plaintiff contended, the stumpage had been paid for, and that thereupon the timber became his.
On the other hand, much evidence was introduced by the defendants, tending to show that the testimony of Hines was not to be relied upon, and'that in fact he never gave any such receipt as he testified that he did; but that he retained his ownership of the timber, unaffected by the assignment of the draft, no part of which had ever been paid. And the question whether Riñes received the assignment of the draft in full discharge for the stumpage, was, in the instructions of the Court to the jury, explicitly stated to be for their consideration ; and if it was so received, they were further instructed, that the verdict should be for the plaintiff; otherwise for the defendants. The jury thereupon returned their verdict for the defendants. This question of fact, therefore, would seem to have been deliberately settled ; leaving no ground upon which the plaintiff can rest for the support of his action.
He insists, however, that the finding of the jury was not warranted by the evidence ; and has filed a motion for a new trial upon that ground ; but it was a matter of fact; and, as such, exclusively within the province of the jury to be decided. In such cases the Court cannot interfere to subvert their doings, but upon the most manifest delinquency on their part, of which the case furnishes no exhibition.
But the great reliance, on the part, of the plaintiff, (o have the verdict set aside, would seem to be upon his exceptions; the first in order of which is, that the deposition of I. J. Stevens, offered by him, was ruled inadmissible. Whether this ruling was correct or not the bill of exceptions does not enable us to decide. It merely sets forth that the deposition was offered, and, on being objected to by the defendants, was ex-*210eluded. It is not set forth that the rejection took place on account of interest in the deponent, or of informality in the caption, or for irrelevancy. We are, however, in the arguments of counsel, informed, that it was on account of interest in the deponent. This is not enough. It should have appeared in the exceptions how, and in what particulars the plaintiff was aggrieved. If the witness was disinterested, and his rejection was upon the supposition, that he was interested, still the plaintiff might not have been injured thereby.
Upon an inspection of the deposition on file we have been enabled to see, if it had been admitted, it could not have affected the result. The supposed settlement with Bartlett, to which this deponent testifies, was not obligatory upon Bines, who had become the owner of the stumpage, as the jury have found ; and there is no other material fact contained in the deposition, not abundantly substantiated without it. In such case the plaintiff could not be considered as aggrieved by its exclusion ; and it would be improper that the verdict should be disturbed for that cause.
We do not deem it necessary to examine minutely all the twenty-six points raised under the exceptions, with their numerous subdivisions, ingeniously and elaborately argued by the counsel for the plaintiff, with a citation of authorities indicative of a widely extended and praiseworthy research. Many of his propositions are based upon the hypothesis, that the interest, which the owners of the land had reserved to themselves, was in the nature of a lien or pledge, and that such lien or pledge was, by certain acts of the owners or their agents, virtually discharged. These sales of stumpage, in this State, are but conditional, viz. if certain payments be made, and certain other terms be complied with, the sale will become absolute; otherwise it will be void. If the plaintiff, in this case, had contracted with the owners of the land, or their authorized agent, to cut the timber, an interest in it, against the owners, could not have vested in him, but upon strict performance of the conditions named in his contract; or a waiver of performance on their part. If such had been the contract the main *211condition, the payment of the value of the timber, as when standing, has never been performed. Here there was no contract with the owners, which they could have enforced; and the plaintiff had no specific agreement with them, which he could have enforced. Every thing on his side rests upon implication ; and, surely, a very clear case of this kind should be made out to authorize a Court to conclude, that he had become absolutely the owner of the timber. Whoever finds himself in difficulty for want of due precaution should calculate that he must abide by the consequences, and not look to Courts for relief. The plaintiff himself, according to the testimony of one of the witnesses, was sensible of his failure, and of his consequent forfeiture of his right to the timber.
The position, that the acceptance of negotiable security for an existing indebtedness by simple contract, is to be deemed payment, may be, and doubtless is, sustained by the decisions in this State and in Massachusetts; but it is competent to the parties to agree that it shall be otherwise deemed. They may agree that it shall be received as security merely collateral; and proof by parol may be admitted to show, that it was so taken ; and, when so taken, it is the right of the holder to endeavor to make it available for the purpose for which it was taken, by suit or otherwise; and failing of success, he may resort to his original security; and this without previously restoring the collateral security.
The attachment of the timber in question, in the suit against the drawer, by Bartlett, is much relied upon in argument by the plaintiff’s counsel. But such attachment could not make it the property of the plaintiff. He was, so far as appears, a stranger to that suit. It was a matter inter alios. Riñes, when he had taken an assignment of the draft, and had obtained judgment, did not levy upon the timber, but resorted to his original ownership, as well he might, if he had not accepted of the assignment in full discharge of his claim, which by the finding of the jury it seems he had not.
The circumstances attending the auction sale, which were introduced at the trial, tended only to show that Riñes recog*212nized the right of the plaintiff to become the owner of the timber upon the payment of its value when standing. It was a useless formality ; unless he had it in view, as equity perhaps would have dictated, after deducting his claim, to have restored the surplus to the plaintiff; and if this were his purpose he might as well have sold at private sale in the first instance as finally. The several portions of the testimony objected to by the plaintiff could not have varied the result.
The exceptions and motion for a new trial are overruled; and judgment must be entered on the verdict.