was no debt constituted beyond the equitable obligation, and, that being under hand and seal, the cestuis que trust were admitted to rank with specialty creditors of the trustee who had received the money. Benson v. Benson is to the same effect. A sum of 2,800l. was agreed by marriage articles, under hand and seal, to be invested in land to be settled upon trust for the husband and wife and children. The husband received the money and did not invest it. The son, as cestui que trust, filed a bill against the legal personal representative of the husband. It was objected, for the defendants, that this was not a debt by specialty, there being no express contract to pay it, and that at most it was but a breach of trust. But the Court held cestuis que trust entitled to rank with specialty creditors. It is to be observed, that where there is a legal covenant to pay a sum of money to trustees, who declare that they will hold the money upon trust for the benefit of certain persons, the trustees are at law specialty creditors of the covenantors on a legal obligation. When they receive the money their declaration of trust is in no respect a legal obligation, and the right of the cestuis que trust is not a legal right as creditors at all. When Lord Eldon, in Montford v. Lord Cadogan, said that the general words "it is declared and agreed" would amount to a covenant, he did not mean a legal covenant on a debt. He spoke only of the obligation in equity, and not of a legal covenant, for the trustees in that case had not executed the deed, and had not bound themselves under hand and seal. Lord Eldon's words are, "They have in equity undertaken to execute the trust exactly as if they had so executed the instrument.' Sir Launcelot Shadwell's decisions in Mavor v. Davenport (3) and in Turner v. Wardle, proceed on the same principle. There were no words amounting to a contract or covenant to pay in the sense of a legal obligation. But there was in both cases a recognition, under hand and seal, of the duty to perform the trust, and the cestuis que trust were ranked with specialty creditors. (3) 2 Sim. 227. In Wood v. Hardisty it was held, that the cestuis que trust should rank with the specialty creditors where the declaration of trust was under the hand and seal of the trustee. Upon the whole, this seems to be plain, that the rights of the cestui que trust against his trustee are purely equitable; that the relation of trustee and cestui que trust is not that of debtor and creditor; that if the right of the cestui que trust is put on the footing of his being a creditor of the trustee, it is no longer a question of trust or breach of trust, but a case of debt and breach of legal contract. And if by deed, under his hand and seal, the trustee recites the breach of trust, that is certainly an acknowledgment by specialty of the obligors; unless, indeed, it were possible to hold that there is any difference between the acknowledgment of a trust under seal and the declaration of a trust under seal. In the present case, the trustee has testified his acceptance of the trust by his deed under hand and seal. This is an obligation under hand and seal to perform the trust, and whether the words be words of acceptance of the trust, or acknowledgment of the trust, or declaration of the trust, the obligation is the same. For these reasons, feeling bound by the law as laid down by Lord Talbot, Sir Joseph Jekyll, Sir John Trevor, Lord Eldon, Sir Launcelot Shadwell and the Vice Chancellor Knight Bruce, I must hold that the cestuis que trust are entitled to rank with specialty creditors. where they had authority to cross another road on the level, and then carrying it over the line by the level crossing, by which means persons using the highway were obliged to go about 130 yards further than before, and to take two sharp turns, instead of having a straight road. Upon an information filed to restrain the obstruction of the road, the Master of the Rolls held, that the diversion of the road was ultra vires, but more convenient than either a bridge or a tunnel, and dismissed the information. Upon appeal, the decree was affirmed, on the ground that, as the road must be diverted either vertically or laterally, the company had, under the circumstances, complied with the 53rd and following sections of the Railways Clauses Consolidation Act, 1845, by substituting for the road interfered with a road as convenient, or as nearly so as might be. It is no answer to an information by the Attorney General, to say that a larger section of the public is benefited than injured by the act complained of. This was an appeal from a decree of the Master of the Rolls, reported 37 Law J. Rep. (N.S.) Chanc. 822. The information was filed, at the relation of ten inhabitants of Thetford, in the Isle of Ely, owners of land in Grunty Fen, for an injunction to restrain the Ely, Haddenham and Sutton Railway Company from obstructing a public road from Thetford to Grunty Fen, and from permitting it to remain obstructed, and from rendering it unfit or less convenient than it had theretofore been for the passage of foot passengers, horses, cattle, carts and carriages; or, at any rate, to restrain them until they should have made another sufficient road equally convenient; and if necessary, that the company might be ordered to construct all bridges, and other works necessary to prevent the road from remaining obstructed, or unfit, or less convenient than it had theretofore been. The public road from Thetford to Grunty Fen crossed the turnpike road from Cambridge to Ely, coinciding with it for a short distance, as shewn in the first plan. The portion common to the two roads was within the limits of deviation granted to the railway company by their special act, with which the Railways Clauses Consolidation Act was incorporated; and by their special act the railway was authorized to cross the turnpike road on the level within those limits. The line of railway as laid down in the parliamentary plans, crossed the turnpike road a few yards before its junction with the public road from Thetford, at a point marked A. on the following plan. for the railway, it became necessary to by carrying it along the south side of the divert the turnpike road, which was done railway, as shewn upon the next plan; by which arrangement the line of railway only crossed the turnpike road once, viz., at the A. crossing. But this left it necessary to provide for the public road from Thetford to Grunty Fen, which was done by a second level crossing, where the railway passed over the portion previously common to both the roads, marked B. on the first plan. This arrangement allowed the public road from Grunty Fen to Thetford to continue as straight as before, but made it necessary for persons going from Grunty Fen to Ely to cross the railway twice. The Board of Trade refused to sanction the use of two level crossings so near each other, and in consequence thereof the company stopped up the B. crossing, and made a new road along the north side of their line, connecting the Grunty Fen road with the A. crossing, as shewn in the second plan. Under this arrangement persons going from Grunty Fen to Thetford were compelled to go about 130 yards further than before, and to make two sharp turns before they got back into the public road to Thetford. It was contended, on behalf of the informants, that this was a diversion of a public road, which the company had no power to make. They were bound, under the 46th section of the Railways Clauses Consolidation Act, 1845, to carry the public road across in a straight line, either by means of a bridge or a tunnel. The Master of the Rolls was of opinion that the company had diverted the road ultra vires, but with the bona fide view of accommodating the public, and, the diversion being more convenient as well to the public generally as to the parties complaining than either a bridge or a tunnel, dismissed the information, but without costs. From this decision the relators appealed. Mr. Jessel and Mr. G. N. Colt supported the appeal. Mr. Baggallay and Mr. Dryden appeared for the respondents. The following authorities were referred to The Attorney General v. the Great Raphael v. the Thames Valley Railway The Attorney General v. the Great Rangeley v. the Midland Railway Com- HATHERLEY, L.C. (Jan. 11.)-On looking at the 16th and other sections of the Railways Clauses Act, it appears to me that they may very well be reconciled, if reconciliation be needed, in this way. By the 16th section the legislature has taken care that every provision and restriction either in this or the special act should override the whole clause conferring those large powers upon the railway company, dealing with public roads and ways, and therefore it says that all that follows the first opening of the clause shall be subject to every provision in this particular act and in the special act. Having done that, the section says, that for the purpose of constructing the railway or accommodation works connected therewith, that is to say, for executing any of the following works, they may do any of the following things. Then comes this particular clause. They may alter the course of any rivers not navigable, brooks, and so on, "for the purpose of constructing and maintaining tunnels, bridges, passages or other works over or under the same." Then "they may divert or alter, as well temporarily as permanently, the course of any such rivers or streams of water, roads, streets or ways, or raise or sink the level of any such rivers or streams, roads, streets or ways, in order the more conveniently to carry the same over or under or by the side of the railway, as they may think proper." These powers having been given, the 46th section, to which, as to all other clauses of the act, those powers are subject, says: "If the line of the railway cross any turnpike road or public highway, then (except where otherwise provided by the special act) either such road shall be carried over the railway, or the railway shall be carried over the road, by means of a bridge, of the height and width, and with the ascent or descent by this or the special act in that behalf provided," and so on. Taking these two clauses together, the legislature seems to have meant this: In making your railway and carrying it along its course, you may find it necessary to carry it either over, under or alongside of the road; and in constructing the line you shall have power to divert the road for all or any of those purposes. Before you arrive at the 46th clause the company have made up their mind how they will make their line and deal with the roads for that purpose; whether they intend to divert the road in order to carry it alongside of the If they line, or to take it right across. mean to carry it alongside for some distance, so as to cross the line afterwards, they will not be within the 46th section, which was intended to afford the public a protection by the prohibition against crossing roads at a level. The legislature says, you shall have no power of running your railway-carriages across places of public traffic, and therefore, when you at any time cross a road in such a way that the railway-carriages run along the road, at that moment you must cease to run it upon a level. That is not inconsistent with saying you may permanently lay down a plan of diversion, which plan of diversion shall be carried along and parallel with the railway, at a proper time crossing the railway. I think one might illustrate it in this way, and I think the present road does illustrate it: You might suppose a very ill-made country road, of which we may see many, whether from its original faulty construction or from the difficulty of dealing with landowners, pursuing an extremely tortuous course, making several windings and several bends along its course. It would be very absurd for a railway to cross that road and re-cross it at every turn and sweep of its course. In that case the railway would, under the 16th section, deviate it by carrying it parallel until it came to a place where it was necessary to carry it across. The 46th section is to be read in this way, as prohibiting the railway in any case from crossing at a level, and saying how it is to be done. Then the 53rd section is as follows: "If, in the exercise of the powers by this or the special act granted, it be found necessary to cross, cut through, raise, sink or use any part of any road, whether carriage-road, horse-road, tramroad or railway, either public or private, so as to render it impassable for, or dangerous or extraordinarily inconvenient to passengers or carriages, or to the persons entitled to the use thereof, the company shall, before the commencement of any such operations, cause a sufficient road to be made instead of the road to be interfered with, and shall at their own expense maintain such substituted road in a state as convenient for passengers and carriages as the road so interfered with, or as nearly so as may be." That seems to refer to two cases, because the 56th section shews it must refer to the case of a permanent as well as a temporary work-to an entire destruction of the road as well as a temporary cutting through, in which case the company is to provide something else for it, which is pointed out by the 54th and 55th sections; and the 56th section says"If the road so interfered with can be restored compatibly with the formation and use of the railway, the same shall be restored to as good a condition as the same was in at the time when the same was first interfered with by the company, or as near thereto as may be," and if it cannot be restored completely, then there is to be another or substituted road. Here the company come to four crossroads. If I am right in my construction of the act, they would be at liberty to take either one or other of the roads and conduct it parallel to their line, or to take it over or under, as might be most suitable for the general purposes they are engaged in; but if they make up their minds to use the road permanently, so as to make it impassable, and if it cannot be restored, they are to make another road as convenient as may be. The case stands thus: if you simply carry a road parallel to your railway without interfering with the traffic, instead of crossing it over and over again, you are at liberty to do so. If, on the other hand, you do not choose to do so, then, according to the 46th section, every time you cross it you must go over or under it. If you take it and use it permanently as part of your railway, so that it can never be devoted to a public turnpike road, then, under the 56th section, you must make another road as convenient as may be. What are the facts as regards this road in question Coming to the four cross-roads, it would not do to say we have taken the turnpike road to Ely and rendered it as convenient as it was before, within the purview of the 16th section. How is it as to the road to Grunty Fen? It would not do to tell the people who want to go to Grunty Fen that you have accommodated the public by the Ely road, and the persons using that road are more numerous than those who go by the public road to Grunty Fen; in fact, that you give additional benefits to those going in another direction. It is not sound argument; and as to the Attorney General representing the whole public, he represents the whole public in the sense that he asks that right may be done and the law observed, which is not done by giving to persons going to Ely greater advantages than were possessed by people going to Grunty Fen. The question is, whether what has been done has been done in accordance with the observance of the law? If not, the Attorney General strictly represents the whole of the public in saying that the law shall be observed. Have the company, in the course they have taken, transgressed the law? Having laid down the reasonable interpretation of the act, I will apply it to the facts. The company have arrived at a point where the four roads meet. Taking the Ely road in the first instance, they appear to me to act perfectly consistently with the law in carrying it parallel for a certain distance; then, having leave to cross the road at one spot, they have a right to select the spot. Up to that spot they carry it parallel, and then cross it in a reasonable way. That appears to me perfectly legitimate, and in conformity with the provisions of the act. Now, as to the Grunty Fen road. They carry the Grunty Fen road up to the point where they may by law cross the Ely road, and then take it over and bring it back to the Grunty Fen road, making a circuit of a certain distance. They want to cross the Grunty Fen road; they cannot cross it at a level, and therefore it must be dealt with. Under the 53rd section they would be obliged, if they wanted to permanently occupy it, to make a road as convenient as might be; or if they determined to cross the road, then, under the 46th section, they are obliged to cross it with a bridge. Then they say, We ask the Court to give us this construction of the 16th coupled with the 46th and 53rd sections. We find a place where we must do one of two things we must either make a bridge over the line, under the 46th section, or we must give accommodation as described in the 53rd; and under the 16th section we say, provided we give you a road as |