Payne v. The Fredericton Railway Company. was made to the son at the instance of the father, either when the father was in embarrassed circumstances or not by way of advancement, but for the purpose of enabling the purchaser to enjoy the benefit of the purchase at the expense of his creditors, no doubt the controlling power of a Court of Equity enables it to require the grantee to hold subject to a trust in favor of the purchaser in the nature of a resulting trust, and which equitable interest would be available for the benefit of creditors, provided proper steps are taken, and the aid of the Court having jurisdiction over such matters is properly invoked. But it is very clear law that a trustee can only be divested of his right of possession by a decree of a Court of Equity. In a Court of Law, on the contrary, a cestui que trust is a tenant at will or at sufferance of his trustee, and the latter may recover against him in an action of ejectment for the possession of the premises, and he will not be admitted to deny his trustee's title. Therefore, we think the piaintiff was entitled to recover in this action, and the rule must be made absolute for a new trial. In the case of Nixon v. Romerille, Judge Fisher gave a written judgment. PAYNE V. THE FREDERICTON RAILWAY COMPANY. A Railway company made a contract with A for the construction and ballasting of its road. A in ballasting the road, made a track across the plaintiff's land to a gravel pit on anjoining land. Held, That the Company were not liable for the tresprss, the tract being made without their authority, and being merely collateral to the work contracted to be performed. Trespass for entering upon the plaintiff's land, tried before FISHER' J., at the Sunbury Circuit. The trespass complained of was the making of a road or gravel track over the plaintiff's land to a gravel pit on an adjoining lot. The defendants are a corporation, authorized by an Act of Assembly, to construct a railroad from Fredericton to the E. and N. A. Railway, and it appears that they had entered into a contract with Messrs. Pickard & Burpee to carry on and complete the work, including the ballasting of the road. The gravel track over the plaintiff's land was constructed by the contractors for the purpose of bringing gravel to ballast the road, and there was no evidence to show that the defendants or any of their officers had authorized or directed the making of the gravel track. On the trial the defendants' counsel moved for a nonsuit on the ground that the defendants were not liable for the trespass complained of, but that the plaintiff's remedy, if any, was against the contractors and not Payne v. The Fredericton Railway Company. against the defendants. A verdict was found for the plaintiff, with leave reserved to move for a nonsuit, and Fraser, in Michaelmas Term last, obtained a rule nisi for a nonsuit accordingly. E. L. Wetmore, showed cause in Easter Term. Contending that the act of the contractors was adopted by the company and they became liable. Ellis v. The Sheffield Gas Company, (2 E. & B., 767), is an authority to show that where a party contracts with a company to do a particular work, and does precisely what he contracts to do, the company are liable for his acts. Steel v. South Eastern Railway Company, (16 C. B. 550), and Hole v. The Sittingbourne Railway Company, (30 L. J. Ex. 81), are also cases in point. In Green v. The Mayor of St. John (Ante vol. 1., 533) it is decided that where a person is authorized by law to do certain work, he cannot avoid responsibility by contracting with another to do it. Needham and Fraser, contra, contended that the company were not liable for the damage complained of; the action should have been brought against the contractors, it not being shown that the defendants authorized in any way the construction of the gravel track, and such a work being merely collateral to what the contractors had agreed with the defendants to perform, and not necessarily a portion of their contract. For these reasons there should be a nonsuit. Cur. adv. vult. ALLEN, J., now delivered the judgment of the Court. This was an action of trespass for entering upon the plaintiff's land, digging up the soil, and constructing a road thereon. It appeared that the defendants had entered into a contract with Messrs. Pickard & Burpee, to build a railway from Fredericton to the intersection with the European and North American Railway, and that the contractors were to do the ballasting and complete the road in every respect. The alleged trespass was the making a road, or gravel track, as it was called, over the plaintiff's land, to get to a gravel pit on an adjoining lot, from whence the gravel was obtained to ballast the railroad. The building of the gravel track, the opening and working of the gravel pit, and the ballasting of the railroad were done by the contractors and their servants, and there was no evidence that the defendants or any of their officers had authorized or directed the making of the gravel track. A verdict was found for the plaintiff, subject to a motion for a nonsuit on the ground that the remedy was against the contractors, and not against the Company. Payne v. The Fredericton Railway Company. The plaintiff must rely for his right to recover against the company upon their liability for the acts of the contractors and their servants. But, the relation of master and servant does not exist between the company and the contractors; and the company are not necessarily liable for trespasses committed by the contractors in the performance of work which they have undertaken to do. This principle is established by the cases of Reedie v. The London and North Western Railway Company, (4 Exch. 244); Knight v. Fox, (5 Exch. 721); Overton v. Freeman, (11 C. Bench, 867), and Peachy v. Rowland, (13 C. Bench, 182). The work which the defendants employed Pickard & Burpee to do, was authorized by law, and for aught that appears, might have been done without committing any trespass on the plaintiffs land; and in these respects this case is distinguishable from the cases of Ellis . The Sheffield Gas Consumers Company, (2 E. & B. 767), and Hole v. The Sittingbourne Railway Company, (6 H. & N. 488), relied on by the plaintiff's counsel; for, in one of those cases, the act which the contractor was employed to do was illegal, and in the other, the contractor was employed to do the particular act which produce the injury complained of. Pollock, C. B., in delivering judgment in the latter case, said:"Where the act complained of is purely collateral, and arises "incidentally in the course of the performance of the work, the "employer is not liable, because he never authorized that act-the "remedy is against the person who did it. But when the "contractor is employed to do a particular act, the doing of which "produces the mischief, another doctrine applies." Now, in the present case, the particular act which the defendants employed the contractors to do was to construct the railway; and the making of the gravel track, which is the alleged trespass, was altogether collateral to the performance of their contract; therefore, in the absence of any evidence to show that the gravel track was made by the direction or authority of the defendants, we do not think they are liable for the act of the contractors in making it. The rule for entering a nonsuit will therefore be made absolute. This renders it unneceseary to consider the points argued on the motion for a new trial. * Ritchie, C. J., took no part in this case. * * Rule absolute. BULLEN v. HARDING. Where compulsory proceedings are taken against a debtor under the Insolvent Act of 1869, and an attachment is issued, money in the hands of the sheriff realized from a sale of the debtors effects under an execution, belongs to the assignee under the 59th section of the Act. This was an action for money had and received, tried before WELDON, J., at the St. John May Circuit. The plaintiff was a judgment creditor of one John H. Richards, the defendant was the sheriff of St. John. Richards gave the plaintiff a bond and warrant of attorney, on which judgment was immediately entered up and judgment signed December 2nd, 1869. On December 4th, a writ of fieri facias was issued to the sheriff of St. John, indorsed to levy $3,799.83, under which Richards' goods were seized and sold by the sheriff; but in the meantime proceedings had been taken against Richards by other creditors for compulsory liquidation under the Insolvent Act of 1869, and a writ of attachment was issued against his estate and effects before the money was paid over to the judgment creditor, and while it was still in the sheriff's hands. He therefore refused to pay over the money, and the present action was brought. A nonsuit was moved for and granted by the learned Judge, on the ground that under the 59th section of the Insolvent Act, the proceeds of an execution in the hands of the sheriff passed to the assignee of the insolvent's estate, and that therefore plaintiff was not entitled to recover. Duff, Q. C., in Trinity Term obtained a rule nisi to set aside the nonsuit and for a new trial, contending that money in the hands of a sheriff, the proceeds of an execution, did not pass to an assignee, citing Brand v. Bicknell (4 Canada L. J., N. S. 95), as an authority under the Canadian Insolvent Act of 1864, in support of this view. C. W. Weldon showed cause on a former day in this term. The intention of the Insolvent Act is, that the goods of the insolvent shall be divided pro rata among all his creditors, and it goes much further than either the English act, or the former Canadian act of 1864, on which the decision of Brand v. Bicknell is based. It provides that not only must the sale take place under the execution, but that the money must actually be paid over by the sheriff, otherwise it belongs to the insolvent's estate. The wording of the 59th section shows this clearly. It provides that no lien or privilege shall be created upon the estate of the insolvent for the amount of any judgment debt, by delivering execution to the sheriff, or by levy, if before payment over to the plaintiff, the estate of the debtor shall have been placed in compulsory liquidation. They contend that the Bullen v. Harding. moment the sale is effected, the money becomes the creditor's; but that is a fallacy; it is still the money of the debtor until it is paid over by the sheriff, who is the officer of the Court. Duff, Q. C., contra. The 59th section does not take away the execution creditor's right to the proceeds of the sale. We claim no lien or privilege in the money as expressed in the wording of that section, we claim it as our property absolutely. A lien is not property, but a right to hold some claim against property. [ALLEN, J.: If the section had not contained the subsequent words with reference to the payment over of the money, your argument would have been, very strong.] I admit they complicate the matter, but contend that whatever the intention of the Parliament may have been, the plaintiff's right cannot be taken away unless by express words: voluit non dixit. The 116th section of the Act plainly provides that the operation of sections 10 and 29 shall extend to all the assets of the debtor, although actually under seizure, so long as they are not actually sold by the sheriff. This exception is clearly applicable to the present case. The goods of the debtors were sold and the property had passed from him, and the money belonged to the judgment creditor. It would be a most unjust interpretation to put on the Act, to declare that after sale under execution, the non-payment of the money by the sheriff shall render it liable to seizure as part of the insolvent's estate. A creditor might in this way, by the delay of the sheriff, be entirely defeated and lose the fruits of his diligence, for it is a supposable case that money might not always be paid over promptly by sheriffs. Cur, adv. vult. ALLEN, J., now delivered the judgment of the Court. The question in this case is, whether money levied by the sheriff under an execution issued against a person who had become insolvent, and against whom proceedings had been taken for compulsory liquidation under the Însolvent Act of 1869, can be recovered by the judgment creditor-the money not having been paid over by the sheriff at the time the writ of attachment issued against the insolvent. The section directly bearing on the question is the 59th, which enacts that "No lien or privilege upon either the personal or real "estate of the insolvent shall be created for the amount of any "judgment debt, or of the interest thereon, by the issue, or delivery "to the sheriff of any writ of execution, or by levying upon or seiz"ing under such writ the effects or estate of the insolvent, if before "the payment over to the plaintiff of the moneys actually levied “under such writ, the estate of the debtor shall have been assigned |