Dinkins’ execution not having been paid under the agreement between Dr. Eranklin and the Virgins, the question is, can a Court of Equity hold the Virgins as trustees for Din-kins’ debt, and they decreed specifically to pay it ? "We think not.

They never stipulated to perform the contract of September, 1853, made with Dr. Eranklin for the benefit of Mr. Dinkins. They never undertook to pay him, or cause him to be paid, by Eranklin, one dollar. In fixing the amount that the Virgins were to pay Eranklin, Dinkins’ debt is mentioned, and in this connexion only. But for this purpose it never would have been referred to.

The evidence shows that the Virgins have punctually kept what seemed to be a rather stringent contract. The whole *132consideration for the purchase made of Franklin has been discharged. If Dinkins can look to any other person than VanYalkenburgh to pay his execution, equity would seem to point to another, and not the Yirgins. That Franklin could be charged as trustee for Dinkins may be admitted ; but we totally deny the liability of the Yirgins to be made trustees under this agreement. "What privity is there between them ? Rone. As to Franklin being made a trustee for Dinkins, we withhold our judgment on that point, as it is not made in the case now before us.

We have examined carefully the authorities of Gordon vs. Gordon, 3, Swanston 399, and the long note appended to the report; also, the case of Gregory and Parker vs. Williams, 3, Merivale 580, and the marked distinction between these two cases and the one before us is, in the former there is privity in contract; in the latter there is none.

As to the proposition to open the receipt executed by Dr. Franklin’s estate to the Yirgins, the same objection applies. What right lias Dinkins to interfere in this matter ? It is between third parties, and any settlement between them does not concern him. If any property has been transferred by Franklin to the Yirgins belonging to YanValkenburgh subject to Dinkins’ execution, his lien is not displaced, unless his agreement with Franklin has had that effect.

Judgment reversed.