It was also admitted that the sums paid since making the leases of the 10th April, 1880, and the 22nd April, 1881, had not been sufficient to pay the interest on the bonds.

The effect of the Act of 1881, and of the instruments executed in pursuance of it, is to postpone the plaintiff's claim to the whole of the bonded debt of the Lake Erie Company, $1,510,000, created under the Act, and not merely to the original debt of the Port Dover Road, (which always had priority to it), or to that portion of the bond issue of the Lake Erie Company allotted in respect of it. The 4th section, while professing to preserve the liability of the assets, present and future, of each of the amalgamated companies to any lien or claim existing against it, nevertheless expressly enacts that all such liens and claims shall be subject to the provisions of the Act relating to issue of bonds by the Lake Erie Company; and the 36th section then gives priority to the first and second mortgages over all other charges on all the property, present and future, of the company.

The plaintiff's position then would seem to be this: his judgment debtors have become amalgamated with other corporations, and no longer exist. The line of road of the new company, with all its rights, powers, and franchises, has been transferred for a term of years to the Grand Trunk Railway Company, which is now in possession of, and operating them; and although the principal of the bonded debt does not become due until the years 1901 and 1902, the whole of the Lake Erie Company's share of the gross receipts of the road, namely, 25 per cent. up to a certain sum, and as to the surplus over that sum, one half of such surplus, is charged in the meantime in the hands of the Grand Trunk Railway Company (who are by law bound to pay it over to the bondholders) with payment of the interest on the bonds, amounting on the first mortgage bonds alone to the annual sum of $36,375; and unless and until the Lake Erie Company's interest in the 25 per cent. of the gross receipts is more than sufficient to meet the interest on all the bonds, there is no fund applicable for payment of the judgment.

When that state of things arises, and it has not yet arisen, and its existence seemed to be regarded as a very improbable contingency, it may be that the Port Dover Company's share of the surplus of the 25 per cent., ascertainable in the manner provided by the fourth section of the Act, will be assets in the hands of the Lake Erie Company, available for payment of the other liens and claims mentioned in that section, which may be reached by proceedings for attachment, or by an order upon the defendants to pay it into Court, as suggested by the Court in the case of Simpson v. The Prescott and Ottawa R. W. Co., 1 Ch. Chamb. R. 126, 10 U. C. L. J. O. S. 108.

In these circumstances, and upon the principles deducible from the authorities I have referred to, I am of opinion, agreeing with my brother Ferguson, that the plaintiff is not entitled to a receiver.

1. Because it is neither just nor convenient that one should be appointed to receive the income of the road, merely to do with it just what the Grand Trunk Company are bound to do, and are doing with it.

2. Because there is no reason to suppose that there is anything to receive, in which the plaintiff can be interested. It was hardly attempted to be denied, that the only way in which the plaintiff expected the appointment of a receiver to be useful to him, was that the defendants would possibly pay his claim rather than submit to interference with their arrangements.

3. Because the utmost 'that can be said for making the appointment is that it will do no harm.

4. Because, though the bondholders are not in actual possession, the whole income of the principal defendants is legally applicable and is being applied towards reducing the incumbrances, and is insufficient to pay the interest thereon; and

5. Because the judgment debtors are not the owners of or in possession of the road, which has become the property of another company, and is in possession of their lessees. I think the appeal should be dismissed.

38-VOL. XII A.R.

[That the motion may be renewed or made in the original suit, see Salt v. Cooper, 16 Ch. D. 545; Smith v. Cowell, 6 Q. B. D. 75; Anglo-Italian Bank v. Davies, 9 Ch. D. 275.]

HAGARTY, C. J. O., BURTON, and PATTERSON, JJ.A., concurred.

Appeal dismissed, with costs.

DONOVAN V. HERBERT.

Ejectment-Insolvent Act, 1878. secs. 68, 75-Assignee-Fraudulent conveyance-Pursuing creditors-Validity of sale-Title by possession.

In an action of ejectment the plaintiff claimed title under F., a grantee of S., the assignee in insolvency of P. D., who formerly owned the land, and who some years before his insolvency had conveyed the land to his brother, L. D. S., under the advice of the inspectors of the estate, refused to take proceedings to set aside the conveyance to L. D., as fraudulent, and two of the creditors, under the provisions of sec. 68 of the Act, having obtained leave from the insolvency Judge, instituted a suit in the name of S. and procured a decree declaring the conveyance to L. D. fraudulent and, as against S., void. The decree did not direct a sale of the land, as was prayed. The land was, however, advertised for sale, the period of advertisement being shortened by the Judge, and was sold to F. S. under instructions from the general body of creditors, at first refused to convey to F., but subsequently conveyed upon an order being obtained from the Judge directing him to do so.

Held, [affirming the decision of the Common Pleas Division, 9. O. R. 89] that the sale was not one subject to the control of the general body of creditors, and therefore that the restrictions of sec. 75 of the Act were inapplicable, and the sale was valid.

Held, also, that the defendant failed to establish his claim of title by possession.

THIS was an appeal by the defendant from the judgment of the Common Pleas Divisional Court in favor of the plaintiff.

The action was for the recovery of land.

The plaintiff formerly brought an action of trespass against the defendant in respect of the same land, and at the trial before Osler, J., without a jury, a verdict was entered for the defendant.

The plaintiff, with the view of obtaining a verdict and judgment in his favor, before the entry of judgment in the trespass action, in order to prevent it operating as an estoppel, brought the present action.

The plaintiff claimed title through a succession of conveyances, commencing with that from one McMahon, the owner in fee in possession in 1853.

The defendant alleged himself to be the owner in fee in possession of the land; he also claimed the benefit of the Statute of Limitations, and pleaded the judgment in the trespass action in estoppel of the plaintiff's right to again question his title.

Before the trial of this action the Common Pleas Divisional Court set aside the finding of Osler, J., in the trespass action, and ordered judgment to be entered for the plaintiff (4 O. R. 635.)

The trial of the present action took place before Galt, J., without a jury, at the Toronto Summer Assizes, 1884.

The facts proved were shortly these:

Edward McMahon was owner of and resided upon the land in question, being a portion of what was known as the McMahon block, on Seaton street, in the city of Toronto.

On the 27th September, 1853, he sold at public auction the whole of said block; and lots 17 and 18, portions thereof on the east side of Seaton street, were purchased by one Patrick Doyle; and the adjoining lot 16 was at the same time purchased by the defendant.

Shortly after his purchase the defendant enclosed his lot and erected a dwelling on the rear thereof, where he took up his abode and subsequently resided.

The defendant was a builder, and about September, 1855, began to make use of portions of Doyle's lots by depositing thereon some trestles, lumber, and other appliances of his trade; these he from time to time removed, and afterwards. deposited other material, according as it served his convenience.

Doyle was aware that the defendant was making such

use of his lots, and one day remarked to him “that he might use them as long as he (Doyle) was not making any use of them;" and the defendant continued his use of the lots whenever he required to do so.

On the 27th August, 1859, Doyle made a conveyance of the lots to his brother, Lawrence Doyle, who was also aware of the defendant's user of the land, and consented thereto as Patrick had previously done; but about the year 1865 Lawrence Doyle entered upon the land, and removed a quantity of soil therefrom, with a view to level it. Afterwards, in the spring of 1876, he again entered upon the land and had it ploughed, and planted, and fenced. This was the first time the lots were enclosed since the purchase by Patrick in 1853.

From the commencement of his ownership the lots were assessed to Lawrence Doyle, and he paid the taxes thereon.

On the 27th July, 1877, a writ of attachment in insolvency, at the suit of Nerlich & Co., issued from the County Court of the county of York, directed to Robert Hall Smith, an official assignee, requiring him to attach the estate and effects of Patrick Doyle. Smith afterwards became assignee in insolvency of Doyle's estate. Certain creditors of the insolvent, viz., Sadlier & Murphy, carrying on business in New York, having proved claims against his estate, and finding the assets deficient, requested the assignee, under the provisions of section 68 of the Insolvent Act of 1875, to institute a suit against Lawrence Doyle to have the conveyance of the land in question declared fraudulent against creditors: the assignee under the advice of the inspectors of the estate refused.

Sadlier & Murphy thereupon applied for and obtained from the Judge in insolvency an order authorizing them, upon giving indemnity to the assignee, to institute such suit in his name, but at their own expense and risk.

Accordingly, on the 11th January, 1878, a bill was filed in the Court of Chancery for Ontario in the name of the assignee against Lawrence Doyle for the recovery of said land.

The cause was heard in November, 1880, and a decree