question is, whether the representation was untrue or not. The great difference between the plaintiff and defendant arises from the different mode in which the witnesses ascertained the quantity of the timber; one set of witnesses says every tree containing five feet constitutes a timber tree; another says there must be ten feet. If I take the plaintiff's own statement of his case as well as his own witness, 35 feet is the highest average; and the plaintiff by his bill admits, that the particulars of sale would have been more correct, if, instead of stating the average at 50 feet, they had stated it at 40 feet. Though there were no representations of the number of the trees, it is very difficult to say that the party is not deceived in what he buys, if he has had no opportunity of ascertaining, from the time of the year at which the sale takes place, the actual state of the wood; for there must be a substantial difference between a wood consisting of young timber trees, and a wood consisting of trees of a larger size. I am not quite satisfied as to what the justice of the case requires. When I say that a party who makes a representation that is untrue cannot enforce his contract, that, of course, supposes that the purchaser is deceived; for, if the purchaser at the time knows that the representation is untrue, he is not deceived, and cannot avail himself of the fact of the misrepresentation. Looking at that part of the answer which relates to Jabez West, I had a doubt whether J. West had or had not made any representation to the defendant; but it was the plaintiff's duty to have made out that point. There has, however, been a representation in the particulars, which turns out not to be correct. I think the proper course will be to dismiss the bill, but without costs.

settlement, together with mining and other shares, accompanied with a memorandum of agreement to grant a mortgage with an unqualified power of sale. A. becoming bankrupt, the plaintiff filed his bill against A, his assignees, and his wife and children, and the trustee of the settlement, charging that the settlement was void against the plaintiff under the 27 Eliz. c. 4., and also against A's general creditors, under the 13 Eliz. c. 5, A. being insolvent at the time of the execution; and praying a sale or foreclosure: -Held, that the settlement was void as against the plaintiff under the 27 Eliz. c. 4; and that the plaintiff, though an equitable mortgagee, had a title to sustain the suit under the 13 Eliz. c. 5, so far as to let in his specific lien; but whether for the purpose of distribution among the general creditors, quære.

Where there is strong evidence of the embarrassment of the settlor's affairs at the date of the settlement, the Court will direct an inquiry as to that fact.

Where the memorandum of deposit of titledeeds contains an agreement to grant a legal mortgage, with an unqualified power of sale, the Court, on the failure of the mortgagor to redeem, has power to direct a sale.

The plaintiff in this case was the registered officer of the Liverpool Union Banking Company, and the bill stated that the defendant W. Slater, who was a customer of the bank, on the 21st of July 1841, in consideration of a debt then due and future advances, deposited with the company the title-deeds of freehold property in Meadow Street and Brunswick Road, Liverpool, and certain railway shares and mining shares, as a security for such debt and future advances, and that such deposit was accompanied with the following memorandum :— "To the Union Bank of Liverpool.-In consideration of advances made and to be made by the banking company, called the Liverpool Union Bank, to me, I do hereby deposit with the said company the title-deeds, certificates, and shares, and documents mentioned in the schedule hereinafter written, as a security to the said company for the general balance of account, as banker and customer, between them and me, or of me and any person or persons who may join me in partnership, for bills or notes discounted or paid,

and for loans, credits, or advances made to or for the accommodation, or at the request of me, the said W. Slater, or of such person or persons as aforesaid, and for interest and commission, and other usual charges and expenses. And I undertake and agree, at the request of the said directors for the time being of the said company, and for better securing the said balance or otherwise, tò transfer and assure in due form of law, to such person or persons as they shall direct, all and singular the lands and hereditaments, and the messuages and buildings thereon, and all and singular the railway and other shares, and other the property mentioned and comprised in the said schedule hereinafter written, for all my estate and interest therein by way of mortgage, with full and absolute power of sale, and of giving good and sufficient receipts to purchasers; but the sum to be secured not to exceed 2,0001. July 21, 1841. W. Slater." That after the date of the deposit the company made various advances to Slater. That, on the 9th of February 1842, Slater became bankrupt; and since the opening of the fiat, the plaintiff had discovered that, on the 16th of June 1841, W. Slater had made a voluntary conveyance of part of the property comprised in the deposit with the company. That on the 28th of June 1842, the plaintiff received notice from the solicitor of Slater, that the Meadow Street and Brunswick Road property had been previously assigned to the defendant Antrobus, upon trust, for the benefit of the bankrupt's wife and children, and giving him notice not to part with the title deeds; that by an indenture of the 16th of June 1841, between Slater of the first part, and Antrobus of the second part, for a nominal consideration, the bankrupt released and conveyed the property mentioned in a schedule (which included, among other property, the Meadow Street and Brunswick Road property) upon trust to sell, and stand possessed of the proceeds upon general trusts declared by a deed of even date. That, by the deed of even date, Antrobus was to hold the proceeds upon trust, for the benefit of the bankrupt's wife and children. That there was due to the company on their security, at the date of the bankruptcy, the sum of 9447. 6s., and that the security would be insufficient without the property in Meadow Street NEW SERIES, XV.-CHANC.

and Brunswick Road. The bill charged that the deeds of June 1841 were fraudulent and void against the company, as equitable mortgagees, as to such part of the property comprised therein as was comprised in their security; and that, at the time of executing the deeds of June 1841, the bankrupt was indebted to the bank and other persons in a sum considerably more than he was able to pay or secure without the property comprised in the deeds of June 1841; and that, consequently, that conveyance was void as against the creditors of W. Slater, or, at all events, as against the company, so far as it related to the property comprised in their deposit. The bill then prayed that the deeds of the 16th of June 1841 might be declared fraudulent and void, and be delivered up to be cancelled, or, at all events, that the same might be declared fraudulent and void, so far as they related to such part of the property comprised therein, as was comprised in the title deeds and writings deposited by W. Slater with the company; and that an account might be taken of what was due for principal and interest to the company upon the security of the said deposit; and that what should be found due upon taking the said account, together with the costs of the suit, might be paid, or that, in default thereof, the several messuages and hereditaments, railway and mining shares, comprised in the said memorandum of deposit, might be sold, and that all necessary parties might be ordered to join in such sale, and that the produce arising therefrom might be applied in or towards payment and satisfaction of what should be found due to the said company upon taking the said account, together with the costs of the suit; and for a receiver in the meantime : or if the Court should be of opinion, that the plaintiff was not entitled to have the said messuages and hereditaments, railway and mining shares sold, and the proceeds arising from such sale applied in or towards satisfaction of the principal and interest, which should be found due upon taking such account, that then the said defendants might be ordered to pay what should be so found due for principal and interest as aforesaid, together with the costs of the suit, by an early day, to be appointed for that purpose; and that, in default thereof, the said defendants, and

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all persons claiming under or in trust for them, or any of them, might be absolutely barred and foreclosed of and from all benefit and equity of redemption therein; and that the defendant, Antrobus, and all other necessary parties, might be ordered to execute all proper conveyances, assignments, and assurances of the messuages, hereditaments, railway and mining shares, to the said company, or as they should direct. The defendants to the suit were the assignees of the bankrupt, the bankrupt, his wife and children, and Antrobus, the trustee of the deeds of the 16th of June 1841.

Evidence was entered into, on the part of the plaintiff, strongly tending to shew that the bankrupt was in insolvent circumstances and largely indebted, to the amount of 7,000l. and upwards, at the time of the execution of the deeds of June 1841.

Mr. Romilly and Mr. Rolt, for the plaintiff, contended, that an equitable mortgagee was a purchaser pro tanto within the statute 27 Eliz. c. 4.-Buckle v. Mitchell (1); that, with respect to the property not comprised in the voluntary deed, the plaintiff was entitled to a sale as of course; as to the rest, he would stand in the situation of a mortgagee-Parker v. Housefield (2). To make the voluntary settlement void as against general creditors, under the 13 Eliz. c. 5, it was not necessary to prove that the settlor was in a state amounting to insolvency; it was sufficient to shew that he was largely indebted-Townsend v. Westacott (3), and that the Court would direct an inquiry as to the debts, if necessary.

Mr. Anderdon, for the assignees, contended, that the voluntary deed was wholly void, under the 13 Eliz. c. 5, both as to the real and personal property-Norcutt v. Dodd (4); and that the Court ought, in this suit, to declare the deed void as against the general creditors, and that the trustee of the fraudulent settlement was not entitled to his costs.

Mr. K. Parker and Mr. Craig, for the trustee of the settlement, and the wife and

(1) 18 Ves. 100.

(2) 2 Myl. & K. 419; s. c. 4 Law J. Rep. (N.s.) Chanc. 57.

(3) 2 Beav. 340; s. c. 9 Law J. Rep. (N.S.) Chanc. 241.

(4) Cr. &. Ph. 100; s. c. 10 Law J. Rep. (N.s.) Chanc. 296.

children of the bankrupt.-The debt of the plaintiff accrued after the date of the settlement, therefore he has no right to ask to set it aside-Lush v. Wilkinson (5). The plaintiff is a simple contract creditor, and has no locus standi to ask relief under the 13 Eliz. c. 5.-Colman v. Croker (6). But an equitable mortgagee is not a purchaser within the 27 Eliz. c. 4.-Kerrison v. Dorrien (7). The plaintiff is not entitled to the first alternative of the prayer, but only to the common decree of foreclosure, with a reference to the Master to see if it would be for the benefit of the infants to sell the property. The plaintiff ought to pay so much of the costs of the suit as relates to the relief under the 13 Eliz. c. 5.

Mr. W. H. James, for the bankrupt, contended, that the plaintiff had no right to frame his bill in a double character, as having a particular lien, and also as suing on behalf of the general creditors.

Mr. Romilly, in reply.-This is simply the case of a creditor having a double remedy; first, to have the settlement set aside under the 27 Eliz. c. 4, as mortgagee; and secondly, to have the settlement declared void, under the 13 Eliz. c. 5, and then to enforce his specific lien against the general creditors. The case of Kerrison v. Dorrien was an action of trover, and merely decided the legal right; but Buckle v. Mitchell is decisive in equity upon that point.

March 23.-WIGRAM, V.C.-The plaintiff in this case is the registered officer of the Liverpool Union Banking Company. In July 1841, W. Slater was in partnership with two other persons as a salt-merchant. On the 21st of July 1841, W. Slater deposited with the banking company the titledeeds of certain freehold estates, relating, among other property, to the freehold property in Meadow-street and Brunswick Road, Liverpool, and certain railway and mining shares, accompanied with the following memorandum of deposit.-(His Honour here read the memorandum.) On the 9th of February 1842, W. Slater became bankrupt, and his assignees are defendants in this suit. The balance claimed by the

plaintiff, as due at the time of the bankruptcy, is 9447. 6s. Stopping here, the claim of the plaintiff to have what is due raised upon the property comprised in his security, is clear. The contest of the parties has arisen from what follows. On the 16th of June 1841, about a month before the date of the deposit, W. Slater conveyed to the defendant Antrobus (a trustee), together with other property, so much of the property comprised in the plaintiff's security, as was situate in Meadow Street and Brunswick Road, upon trust, to sell, and apply the proceeds for the benefit of W. Slater, his wife and children. This conveyance was voluntary; and it is necessary for the plaintiff, in order to get the benefit of his security, to avoid the conveyance of June.

Accordingly, the bill makes two points: it insists that the plaintiff is a purchaser for good consideration under the statute of the 27th of Eliz., and that, therefore, the deeds of June are void as against him, so far as they comprise the property in Meadow Street, and Brunswick Road; secondly, that W. Slater, at the time of executing the deeds of June, was indebted to the plaintiff and other parties to an amount exceeding what he was able to pay or secure, excluding the property comprised in the deeds of June; and that, therefore, that deed was void, under the 13th of Eliz. c. 5. And supposing these points to be decided in the plaintiff's favour, there are some points of detail to be considered. With respect to the first point, that upon the 27th of Eliz. c. 4, it appears to me that Buckle v. Mitchell is a direct authority that a person, having an equitable interest in land, entitling him to clothe it with the legal estate, is a purchaser within the statute. I am bound, therefore, by that case, to say, that the plaintiff is entitled to avoid the deeds of the 16th of June 1841, and to enforce his security by deposit. With respect to the second point, it would be unnecessary for me (having decided that the plaintiff is entitled under the 27th of Eliz. c. 4.) to notice his claim to relief, under the 13th of Eliz. c. 5. were it not that the defendants contend that this claim is altogether void, and that the plaintiff must pay the costs of the suit incurred in respect of this claim. Those who have contended that the plaintiff's claim cannot be

sustained under the 27th of Eliz. c. 4. cannot succeed in that argument, unless they can shew that the claim under the statute of the 13th of Eliz. c. 5. cannot be sustained in the present form of the record; or that the evidence in the cause is insufficient to sustain the plaintiff's case. Both points were argued. I think the first must be decided in the plaintiff's favour in my view of the case.

The deposit in question was made on the 21st of July 1841; the plaintiff afterwards discovered the execution of the previous deeds of the 16th of June 1841; if the latter deeds are to stand, the deposit is valueless. The plaintiff has a direct interest in shewing that these deeds are invalid under the 13 Eliz. c. 5; and if he succeeds in doing that, he will then give validity to his own security. Being a creditor, and having a specific interest upon part of the property comprised in the deeds of the 16th of June 1841, he has an interest sufficient to sustain this suit; and without giving any opinion at this time, how far, upon the form of this bill, the plaintiff could, if he desired it, have the deeds of June set aside altogether, and the property distributed among all the creditors of W. Slater; and whether, in the ordinary case, it would be necessary for a creditor asking to set aside a conveyance as fraudulent under the 13 Eliz. c. 5, and not having a specific interest in the property comprised therein, to obtain a judgment at law, as in Colman v. Croker, or whether, if that be so, the bankruptcy of the mortgagor is a sufficient excuse to dispense with such a proceeding; or whether, if the plaintiff's relief depended on the 13 Eliz. c. 5, the evidence of insolvency, before the making of the deeds, is sufficiently clear, I think, his right to sue under the 13 Eliz. c. 5. is established.

The evidence, if not already sufficient, is such as to entitle the plaintiff to an opportunity of perfecting it, the costs being the only question in the cause. The evidence being very strong, it it sufficient to say, there is no ground for distinguishing the costs of this part of the suit from the other

costs.

The next question is, what is the form of the remedy to which the plaintiff is entitled; whether a decree for a mortgage or for a sale. I find there is a much greater difference upon this point than I was aware of. But

in this case, the contract in terms is, that W. Slater shall assign the property by way of legal mortgage, and that the mortgage deed should contain an unqualified power of sale, for the purpose of making it available. If it is necessary to decree a sale, the Court must have power to do it; and, therefore, without deciding the general question, there must be a decree for sale in the way I will mention. The right form of decree appears to me to be this :-Declare that the plaintiff is a purchaser for good consideration, within the meaning of the 27 Eliz. c. 4; and that the deeds of the 16th of June 1841 are void as against the plaintiff, so far as the same relate to the property in Meadow Street and Brunswick Road, which are also comprised in the plaintiff's security of the 21st of July 1841. The Master to take an account of the principal and interest due to the plaintiff, under that security, and tax the plaintiff's costs of suit. Then let the defendants pay to the plaintiff what shall be found due for principal, interest, and costs, within six months after the Master's report, at such times and places as the Master shall direct. In default of payment, the Master to ascertain of what the property comprised in the security of the 21st of July 1841 consists, other than the property in Meadow Street and Brunswick Road; and provided the plaintiff consent, let the property comprised in the plaintiff's security (except that in Meadow Street and Brunswick Road) be sold, and the proceeds applied in payment of what shall be found due to the plaintiff; if that is insufficient, then let the property in Meadow Street and Brunswick Road be sold, and applied in payment of the plaintiff's demand; if the plaintiff will not consent to a partial sale, then let the whole be sold, and the Master report what portion of the proceeds has been derived from the Meadow Street and Brunswick Road property, and what from the remaining property; reserving further directions and costs. If the whole property, when sold, does not realize sufficient to pay the plaintiff's demand, then declare that the decree is without prejudice to the question, whether the voluntary settlement is altogether void under the 13 Eliz. c. 5.

In this case an injunction had been granted by the Vice Chancellor, on the 3rd of April, to restrain the defendant from in any manner violating, pirating, publicly performing, singing, or reciting the words or music of certain musical compositions and songs, called 'Little Fools and great ones,'' Some love to roam o'er the dark sea foam,' 'The Ship on Fire,' The Dream of the Reveller,' 'The Sea King's Burial,' and 'The Maniac,' or the musical compositions to the words of certain songs, called 'The Gambler's Wife,' 'I'm afloat,' and 'Man the Life-boat,' or any other songs comprised in an assignment made by one Charles Mackay to the plaintiff on the 19th of January last, as well as all pieces of music composed by the plaintiff.

The affidavit of Mr. Henry Russell, the plaintiff, upon which the injunction was granted, stated, that, on the 19th of January 1846, he had obtained an assignment from Mr. Charles Mackay, of the right of representing in musical entertainments the words of certain songs, originally written by him, including, amongst others, those called 'Some love to roam,' 'The Ship on Fire,' 'The Boatman of the Ohio,' 'The Dream of the Reveller,' 'Little Fools and great ones,' and others. That he, the plaintiff, had composed the music to these several songs, which had been performed and represented in public by him, and that all his musical compositions had been registered at Stationers' Hall, under the statute 5 & 6 Vict. c. 45; that he had lately been giving musical entertainments at Miss Kelly's Theatre, and other places in London. That the defendant had at a variety of public places given concerts, at which he had sung many of the plaintiff's songs without his per