awbrey v FITZHUGHT Nov injunction upon what circumstance a court of equity  will grant it upon a contract relate to SouthSea stock awbrey contract upon  the that Sep with Fitzhught for the purchase of SouthSea stock at per cent to  be deliver in October follow awbrey not be able to pay the money then a new  agreement be enter into that upon Awbreys give a bind for the payment of be  the difference of part of the stock and enter into another bind for for the  other stock the time of acceptance shall be enlarge until the that of may  follow accord awbrey enter into a bind on the that of November for the payment  of the say in the penalty of on the that of may follow and a indenture of  defeasance of the same date be execute between the plaintiff and defendant  recite the say bind and that the stock be to remain in the defendant  Fitzhughts hand as a collateral security Fitzhught thereby covenant that in  case awbrey pay the due by the bind to transfer the stock but if the be not  pay then the defendant Fitzhught be to be at liberty to sell the stock towards  payment of the the money be not pay pursuant to the bind and Fitzhught put the  bind in suit and the plaintiff awbrey prefer Bunbury his bill set forth this  matter and that the defendant have not transfer nor tender and also set forth  the clause in the bill of credit Geo relate to contract that this be a  contract unperformed and that by the act execution ought not to go and  therefore pray a injunction the defendant in his answer admit the fact as  before set forth and that he do not tender nor transfer but give the plaintiff  notice that he be ready to do it Bunbury er p but it be upon the plaintiff  request that he do not do it and insist that this be not a contract within the  act of parliament now upon motion for a injunction upon the merit the  defendant counsel insist that the parole contract be merge in the bind and  that if the plaintiff have any remedy he have it as much at law as he can have  have it in this court but it be answer that the plaintiff can have no remedy  below now if it have remain upon the parole contract in a action upon that  contract the plaintiff there must have aver and prove a tender accord to the  course of the south sea but upon this bind he will have nothing to do but to  prove the bind and the defendant can either by special plead or upon the  general issue at law show what the consideration of the bind be or that there  be no tender but that it be proper for a court of equity before who all this  matter appear to take cognizance of the whole matter and though the parole  contract be admit to be merge by the bind yet in a court of equity it will be  consider as part of the contract unperformed since the consideration of the  bind be the same as the consideration of the parole contract Bunbury and if  they shall obtain judgement upon the bind we can not come by affidavit to stop  execution and set forth all this matter since nothing appear upon the record  to prevent the common method of take out execution and a injunction be grant  upon these ground by three baron contra Lord chief baron bury and baron price  say the last clause of the act extend to all contract whatsoever as well as  those mention in the precede clause