lands in all townships or tracts until they are incorporated, and the fee becomes vested in the town.” The defendants not only entered upon and explored the land, but they authorized the cutting and removal of the timber and bark. Whatever may have been their intention is immaterial in this suit. If what they did in authorizing others to enter upon and remove the timber and bark from the lots naturally and ordinarily produced the acts complained of, which constitute the alleged trespasses, then they are liable in trespass for those acts. Sutton v. Clarke, 6 Taunt. 29; 1 Wat. Tresp. § 62. The principle upon which one man is held liable for the acts of others is thus laid down in Guille v. Swan, 19 Johns. 382, where the court say: "To render one man liable in trespass for the acts of others, it must appear either that they acted in concert, or that the act of the individual sought to be charged ordinarily and naturally produced the acts of the others." In. Wall v. Osborn, 12 Wend. 39, the same principle is recognized, and the doctrine affirmed that one who does an unlawful act is considered as the doer of all that follows, and the prime mover of the damages that result; and accordingly it was there held that where a party sold a mill standing upon the lot of his neighbor, and appointed a day for the purchaser to take it away, promising to aid him in its removal if assistance was necessary, and the mill was subsequently taken down and removed by the purchaser, that the vendor was liable to an action of trespass, although there was no proof of his being present or aiding in the removal of the building. "By the act of selling the plaintiff's property," remarks SAVAGE, C. J., "the defendant assumed a control over it, and by appointing the time for the removal of the mill he virtually directed the purchaser to take it away." So in Morgan v. Varick, 8 Wend. 594, the defendant sold the plaintiff's steam-engine, and requested the purchaser to take it away, and he was held liable in trespass, the court there holding that any unwarrantable and unauthorized interference with the property of another will constitute the party a trespasser. And it has been held that if one sell timber upon the land of another, and the purchaser cut and remove it, the seller is a trespasser. Dreyer v. Ming, 23 Mo. 434. The party is held liable in such cases on the principle that he who does an act by another does it himself. It may not be the work of his hands, yet it is the result of his will and his purposes, which are the efficient cause of the operations conducted by others. The case of Scott v. Shepard, 2 Wm. Bl. 892, where the defendant started the lighted squib, and it was thrown into a market-house, where a large concourse of people had assembled, is a strong instance of the responsibility of an individual who was the first, though not the immediate, agency in producing an injury. Another instance is the case of Guille v. Swan, supra, where the defendant ascended in a balloon, which descended a short distance from the place of ascent into the plaintiff's garden; and, the defendant calling for help, a crowd of people broke through the fences into the plaintiff's garden, beating and treading down his vegetables and flowers. It was held, inasmuch as the act of the defendant would ordinarily and natu rally draw the crowd into the garden, he was answerable in trespass for all the damage done to the garden. In the case now before us the defendants, without right or authority, assumed dominion and control over property belonging to the plaintiff. They authorized the cutting and removal of the timber and bark from the public lots, which they have no right to do. The fact that they supposed they had such right renders them none the less trespassers. As was said by SPENCER, C. J., in Guille v. Swan, supra: "The intent with which an act is done, is by no means the test of the liability of the party to an action of trespass." To be sure, the permits were not such as could lawfully be given under the statute in relation to timber upon public lots, inasmuch as the right to grant permits lies with the land agent, and with no one else. Nevertheless, they may be effectual for the purpose of establishing the defendant's liability in authorizing the commission of those wrongful acts which are the basis of this suit. Nor do they alone serve in rendering the defendants liable as authorizing the trespasses, but the defendants, in giving these permits, must be held to have ordinarily and naturally produced the acts which constitute the alleged trespasses,the cutting and removal of the timber and bark from the lots. In Herring v. Hoppoock, 15 N. Y. 413, a bond of indemnity had been given to the officer, and the question was whether the defendant, by giving the bond of indemnity, had rendered himself liable in trespass for the acts of the officer, and it was there held that the giving of the indemnity naturally produced the act of the wrongful sale of the property of the officer, and must be regarded as the principal, if not the sole, cause of it. Also, in Lovejoy v. Murray, 3 Wall. 1, the court held that the giving of a bond of indemnity, whereby the officer was induced to hold property not subject to attachment, made the party a joint trespasser with the officer as to all that was done with the property afterwards. The permits in this case were in effect not mere licenses, but were executory contracts for the sale of the timber and bark therein named, with permission to enter and remove the same. Banton'v. Shorey, 77 Me. 51. Such undoubtedly was the understanding of the defendants, as well as of those to whom they were given, and who are termed "grantees." The defendants received from the permittees pay for their services in exploring the lots before the permits were given; and Smith, one of the defendants, was scaler during all the lumbering operations. This case is unlike Robinson v. Vaughton, 8 Car. & P. 252, S. C. 34 E. C. L. 718, cited by the counsel for the defendants. In that case, which was trespass for breaking and entering the plaintiff's close with a gun and pointer in pursuit of game, there was no such dominion over the property and unauthorized acts of ownership as in this case; and yet the court there say that, if one party authorized and ordered the other to go upon the premises, they would be joint trespassers. Numerous cases are cited by the learned counsel for the defendants to the effect, as he claims, that they cannot be held responsible for the acts of those who cut and removed the timber, inasmuch as those parties sustained the relation of contractors, rather than that of servants or agents of these defendants. Undoubtedly that position might be tenable in a case where the defendants were sought to be held for the negligence of such persons in the performance of a legal act. Such is the doctrine of the cases cited. And the case of Eaton v. European & N. A. Ry. Co., 59 Me. 520, to which our attention has been particularly called, recognizes the distinction, in this class of cases, between the performance of a legal and an illegal act; holding, in accordance with the authorities, that, in the execution of a wrongful or illegal act, the employer is not exempt from liability, but is responsible for the wrong done by the contractor or his servants. In that opinion, APPLETON, C. J., says: "Though a person employing a contractor is not responsible for the negligence or misconduct of the contractor or his servants in executing the act, yet if the act is wrongful the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons for damages sustained by such wrong doing. Ellis v. Sheffield Gas Consumers Co., 75 E. C. L. 767. So if, in the present case, the contract was to do a wrongful act, the defendants must be held liable for damages occasioned thereby; or, if the defendant's engineer directed the contractors to do what was illegal and unauthorized, as by working outside of the limits of the true location, the defendants must be held liable for any trespass thus committed." So one who directs or authorizes a trespass to be done is liable. Bacheller v. Pinkham, 68 Me. 255. The general rule is that in actions of tort all persons concerned in the wrong are liable to be charged as principals." TINDAL, C. J., in Cranch v. White, 1 Bing. N. C. 414; S. C. 27 E. C. L. 700; Cram v. Thissell, 35 Me. 88. The defendants in this case, whatever may be their legal relation to the parties actually cutting and removing the timber, must be considered as having authorized those wrongful and illegal acts which were but the natural and ordinary consequences of their own doings. Inasmuch as we have stated the grounds upon which the defendants have rendered themselves liable in this action, it is unnecessary to consider in detail all the objections set up in defense. Therefore the only remaining question is that in relation to damages. By the terms of the report, it is to be only the current market value of the stumpage, which is admitted to be $2,837 for the timber and bark, and to which sum, as by the report, is to be added the sum of $297.17, as interest, making in all $3,134.17. Judgment for the plaintiff for $3,134.17. PETERS, C. J., WALTON, DANFORTH, VIRGIN, LIBBEY, EMERY, and HASKELL, JJ., concurred. (78 Me. 268) NATIONAL LIFE INS. Co. v. HALEY and another, Adm'rs.1 (Supreme Judicial Court of Maine. May 26, 1886.) LIFE INSURANCE-POLICY-ARRANGEMENT BETWEEN ASSURED AND COMPANY TO DEFEAT RIGHTS OF BENEFICIARIES, VOID. An insurance company issued a policy for $1,000 upon the life of A., payable upon his death to his wife, her heirs, administrators, or assigns, and the 'Reported by Leslie C. Cornish, Esq., of the Augusta bar. premiums were paid by the wife until her death, when, by an arrangement between A. and the insurance company, the policy was allowed to lapse from non-payment of premiums, and a new policy for the same amount and at the same rate was issued to A., payable to him, or his legal representatives. In a bill of interpleader brought by the insurance company, upon the death of A., to determine the title to the insurance, held, (1) that the arrangement aforesaid was ineffectual to extinguish the rights of the heirs of the wife, and as to them was void; and (2) that in equity the insurance should be divided between the heirs of the wife and the legal representatives of A. in proportion to the amount of premiums paid by each. Bill of interpleader to determine title to insurance. H. R. Virgin, for Palmer, Adm'r. LIBBEY, J. This is a bill of interpleader brought by the National Life Insurance Company against Abram Haley, administrator of the estate of Charles J. Haley, deceased, and William C. Palmer, administrator of the estate of Julia A. Haley, deceased, to try the title to the insurance of $1,000, by a life policy issued by the complainant on the life of said Charles J. Haley. A decree was made requiring the said Abram Haley and Palmer to interplead, and, upon the pleadings being filed, the case was tried at nisi prius, and the presiding judge, with the aid of special findings by a jury, found the facts as follows: The orator, on the twenty-ninth day of March, 1869, issued its policy of insurance No. 4,091, for the sum of $1,000, upon the life of Charles J. Haley, payable, upon his death, to his wife, Julia A. Haley, her heirs, executors, administrators, or assigns, requiring quarterly yearly premiums of $4.88; and, during the life of said Julia, she paid the premiums, amounting to $165.92, and that upon her death, in March, 1877, in order that the said Charles J. Haley might acquire to his own use the benefits of said policy of insurance, he and the orator contrived together to allow said policy to lapse from non-payment of premiums, and then said company issued to said Charles J. Haley a new policy of insurance for the same amount, requiring the same quarterly premiums, payable to said Charles, or his legal representatives, dated October 12, 1877, numbered 32,705; that upon said new policy the said Charles paid in premiums the sum of $78.08, and died in September, 1881; that policy No. 4,091 was not given or assigned to Charles J. Haley; that Julia A. Haley had an interest in that policy at the time of her decease; that the heirs of Julia A. Haley had an interest in policy No. 32,705; and that there was other consideration for that policy besides what was expressed in it,-the policy No. 4,091 being a part of said consideration. The judge thereupon decreed, among other things, that the insurance be divided between the said claimants in the proportions of the amounts of premiums paid by said Julia A. and Charles J. Haley. Upon this part of the decree the whole contention between the parties arises; Palmer claiming that the estate of Charles J. is entitled to the whole amount of the policy, or at least to said sum less the amount of premiums paid by Julia A., for which amount her heirs, by the terms of the first policy, were en titled to a paid-up policy; while, on the other side, it is claimed that the estate of Julia A. is entitled to the whole sum insured. We think the decree below, on the facts of this case, is correct. The first question that arises is, was policy No. 4,091 forfeited by the devices resorted to by the insurance company and Charles J. Haley so that the heirs of Julia A. Haley no longer had any interest in the insurance? We think not. Charles J. Haley and the insurance company had no legal power, by direct agreement, to change the beneficiaries named in the policy. This proposition is too well settled to require citation of authorities. They could not accomplish indirectly, by the means resorted to without the knowledge or consent of the heirs of Julia A., what they had no power to do by direct agreement. No such knowledge or consent is shown. We are aware that there is an apparent conflict among the authorities upon this subject, but we think an examination of the decided cases will show that the apparent conflict arises more out of the variant facts acted on by the courts in the different cases than from any essential difference in the principles of law applied to them. But if there is a real conflict, we think there is a decided preponderance of authority in support of the rule we apply to this case. The question was very carefully and ably considered in Barry v. Brune, 71 N. Y. 261, in which the facts raised the same question under consideration, and the court held that the means used to cause the first policy to lapse, and a new one to be issued of like tenor, excepting the name of the beneficiary, were ineffectual to extinguish the right of Mrs. Barry, the beneficiary named in the first policy, to the insurance. In the opinion of the court, EARL, J., says: "It is clear that the old policies were the consideration of and inducement to the new policies. The new policies could not have been obtained but for the possession and surrender by Brune of the old policies; and the premiums upon the new policies were paid, in part, by a cash dividend due upon one of the old policies. Brune thus, by means of possession of the old policies which belonged to the plaintiff, and by using and surrendering them, obtained the new policies. The real substance of the transaction was a substitution of the new policies for the old, for the purpose of getting the security which the old did not give him. Under the circumstances of this case, both upon reason and authority, the substituted policies, in equity, simply take the place of the old policies, and the money payable thereon must go to the party entitled under the old policies. For this conclusion there is abundant reason and authority." The same rule is held in Chapin v. Fellowes, 36 Conn. 132; Lemon v. Phoenix Life Ins. Co., 38 Conn. 294; and Timayenis v. Union Mut. Life Ins. Co., 21 Fed. Rep. 223. In the latter case the facts were similar to this case, except that the beneficiary did not procure the first policy, and paid no part of the premiums. The attempt to change the beneficiary named in the first policy being ineffectual, the remaining question is, how shall the sum due on the policy be divided? Courts have generally held that the beneficiary named in the first policy is entitled to the whole, but we think the facts in this case are, to some extent, different from those acted on by the v.4A.no.3-27 |