brown John tutt appellant John mercer respondent d march Mews dig three a have  borrow of b pound not only give he a bind for it but as a collateral security  deposit with he a subscription receipt of the SouthSea company No for pound  with liberty to sell it in case default shall be make in payment of debt  before the bind become Payable b sell this receipt for pound but pretend that  it be not the receipt deposit by a that receipt of be No for the same sum and  which after default make in payment of the bind b sell for no more than on a  bill l file against b a issue be direct to try whether the receipt so deposit  be No or and a verdict be find that it be No b be decree to account for the  difference with interest and cost on the that of August the respond borrow of  the appellant pound and for secure the repayment thereof not only give he a  bind in the penalty of pound but likewise sdeposited with the appellant a  receipt for pound in the second moneysubscription take in by the SouthSea  company number and by a indenture of defeazance of the same date the  applellant will assign to the respondent the say subscribtion receipt and pay  and account with he for all dividend and payment that shall be make thereon in  the meantime and the respondent agree that if the say subscription receipt and  shall be of less value than pound before the bind be discharge that the  appellant shall sell than same towards satisfaction of the debt in case the  respondenrt shall not give such security as shall be approve of by the  appellant within three day of notice in write and that if default shall be  make in payment of the pound contrary to the say bind then it shall be lawful  for the appellant to sell the say subscription receipt and to apply the money  arise thereby towards payment of the say pound and thw appellant agree to  account with the respondent for the over plus raise by such sale this sum of  pound be make Payable on the that of November then next the interest thereof  for that time be three month be calculate and the appellant stop pound as the  amount of such interest so that the respondent receive no more than pound and  for that reason no mention be make of interest in the bind brown the  subscription receipt so deposit be express describe in the defeazane to be  mark or number and the number thereof be careful compare and examine with the  receipt before the execute of the indenture and it be also full prove in the  cause by the person who engross the say indenture and examine the number of  the receipt but before the pound become Payable the price of stock have  considerable fall and the appellant pretend to be uneasy thereat the rspondent  make he a mortgage of a estate in Childwell in the county of Lancaster of  pound per annum for better secure the payment of the say pound and on the  saint odd April the respondent pay the appellant pound in part of the  principle money which he then think to be due and owe from he but some time  afterward the respondent discover that within four or five day after the  pledge of the say subscription receipt No with the appellant for the purpose  aforesaid the same be sell for pound and the appellant refuse to make the  respondent any satisfaction on the account thereof he in November exhibit his  bill in the court of exchequer against the appellant pray that he may come a  account with he for the money raise by the sale of the say pound subscription  receipt and pay he the overplus after a deduction of what be due to he in  respect of the pound so borrow of he as aforesaid accord to his own brown er p  agreement in the say defeazance and likewise that he may assign the say  mortgage to this bill the appellant put in a first and second answer and by  both of they positive swear that the pound subscription receipt pledge or  deposit with he by the respondent be No and not No that the insert No in the  indenture of defeazance be by mistake that the say subscription receipt No be  on the d of September by inadvertency instead of another receipt in the same  subscription sell to sir Harcourt master for pound and no more that the  appellant have till the that of April keep by he a receipt in the same  subscription No for pound which he be ready to have deliver to the respondent  in case he have before that time pay he the of remainder the pound and  interest but that the respondent fail in payment thereof the appellant have on  the say that of April sell and dispose of the say subscription receipt No for  S d and no more that one receipt be as good as another where both be for the  same sum and in the same subscription and therefore insist that the appellant  ought not to allow the respondent any more than the sum of S d in respect of  the subscription receipt so pledge or deposit the appellant also bring a cross  bill against the respondent pray that he may be oblige to accept of the say  sum of pound S d in satisfaction for the subscription receipt so pledge or  deposit with he brown to this bill the respondent put in his answer and  thereby express swear that the subscription receipt pledge or deposit with the  appellant be No and not No that there be no mistake in the description thereof  insert in the defeazance and that the appellant have acutally sell the say  subscription receipt No for the sum of pound and therefore insist that the  appellant be and ought to be answerable to he for that sum the appellant never  think fit to proceed further in his cross cause but the original cause be at  issue and diverse witness examine on both side the same be hear on the d of  February when the court direct that a trial at law shall he have between the  respondent and the appellant upon a feign action to be bring in the office of  plead of that court wherein the issue be to be whether the second subscription  receipt for pound in the SouthSea company deposit by the respondent with the  appellant be number or which trial be to be at the first sit in Middlesex in  Trinity term then next and proper direction be give for the trial of the say  issue and after such trial the cause be to stand in the paper to be hear on  the equity reserve a trial at law be accord have and upon a full defence make  and examination of witness on both side which last a considerable time the  jury bring in their verdict for the respondent videlicet that the subscription  receipt by he deposit with the appellant be No and not No on the that of July  the cause be hear upon the equity reserve when it be decree that the appellant  shall account with the respondent for the sum of pound for which the say  subscription receipt No be sell and interest for the same from the that of  August the time when it be sell as likewise for the sum of pound pay by the  respondent to though appellant on the saint of April and the interest thereof  and that the mortgage deed bind and defeazance give by the respondent to the  appellant and by order bring into court shall be forthwith deliver up to the  respondent to be cancel and for the better take of the say account it be refer  to the deputy remembrancer to settle what be due for the interest of the say  pound and pound who in take the account be to deduct pound and the interest  thereof to the time of the sale of the say subscription receipt out of the say  pound and pound and interest and the deputy be also to tax the respondent his  cost both at law and in equity on the that of January the deputy remembrancer  make his report and thereby certify to be due to the respondent from the  appellant the sum of pound S d after the several deduction and allowance by  the decree direct to be make and on the that of February follow the report be  duly confirm and it be order that the appellant shall pay to the brown  respondent the say brown er p pound S d in three month after the date thereof  with interest for the same from the d of October to which time the interest  for the say pound be compute by the deputy remembrancer and that the mortgage  deed bind and defeazance give by the respondent to the appellant shall be  forthwith deliver up to the respondent from this decree and order the  appellant appeal insist p York c Wearg that there be no manner of proof in the  cause for what sum the subscription receipt No be sell or that it be ever sell  at all and much less by the appellant that he keep another subscription  receipt by he to be deliver to the respondent in case he have pay the money  due to the appellant of equal value with that deposit by he and there be no  more difference between one subscription receipt and another for the same sum  than there be between one pound stock and another pound stock that under these  circumstance there be no foundation for a court of equity to give the  respondent such relief as have be decree he and therefore it be hope that the  decree will be reverse and a account direct to be take of what be due to the  appellant for principal interest and cost deduct the pound S d receive by he  for the sale of the subscription receipt No and upon payment of what shall be  so report due by such time as shall be appoint for that purpose the respondent  may be relieve against the penalty of the bind and the mortgage estate be  reconvey but in default thereof that the respondent bill may be dismiss with  cost on the other side it be contend t Lutwyche c Talbot that the decree order  and proceed be just and equitable for that it do not appear nor be prove in  the cause when or at what time the appellant first have the subscription  receipt No or how long he keep it by he and therefore he may consistent with  his answer have buy in that receipt at a low price after he have sell out the  respondent receipt No for pound that this receipt be full prove to have be  actual sell for that sum and therefore no issue be needful to be direct nor be  any pray or insist on to try that fact the only doubt with the court be  whether the receipt No be deposit by the respondent because the appellant may  have come by it some other way that the appellant not only acquiesce under the  decree but likewise make a full defence both at the hear of the cause and at  the trial of the issue and afterward when the cause come back upon the equity  reserve that the decree be only conformable to the appellant agreement who  covenant by the defeazance that if he sell the subscription receipt No therein  mention to be deposit with he and so find to have be upon a issue direct only  for that purpose he will account with and pay the respondent the surplus of  the money for which he shall sell the same after a deduction of what be due  brown to he and if there have be no such covenant yet the appellant ought  nevertheless to be Accountable to the respondent for the money raise by sale  of the say receipt and therefore it be hope that the appeal will be dismiss  with cost accord after hear counsel on this appeal it be order and adjudge  that the same shall be dismiss and the decree therein complain of affirm and  it be further order that the appellant shall pay to the respondent the sum of  pound for his cost in respect of the say appeal jour vol p brown er p brown  report volume devise