brown case henry THOMSON Appellant richard HARCOURT Respondent that February a  court of equity will relieve against the penalty for not perform a  unreasonable contract viner vol p can during the time of the wicked execution  of the SouthSea scheme and of the general infatuation thereby occasion it be  by write date the that of June under the hand of the appellant and respondent  agree that the appellant at the then next open of the book of the SouthSea  company or as soon after as the annuity then subscribe into the say company  shall be transferable shall assign and transfer to the respondent pound  SouthSea stock and that he shall immediate upon such transfer pay the  appellant pound for the same the first open of the transfer book for transfer  annuity stock be not till the that of October and then the appellant represent  to the respondent that he the appellant have stock ready to deliver accord to  the say contract and threaten to proclaim the respondent and tender the say  stock and the respondent rely on the appellant representation to be true and  that he then real have the say stock they come to a second agreement under  their hand and seal date the same that of October recite the first agreement  and that the time for accept the say stock expire on that day that it will be  very inconvenient for the respondent to accept and pay for the same accord to  the time prefix by the say first agreement and that the respondent have  therefore apply to the appellant for a long time for accept the same who have  be prevail upon to consent thereto upon the term after mention it be thereby  agree that the appellant shall on the day of open the SouthSea book next after  Christmas or soon if demand by the respondent and upon payment of the say sum  of pound in manner after mention transfer to the respondent pound SouthSea  stock with the dividend due thereon at midsummer then last only and the  respondent do thereby covenant promise and agree to and with the appellant  that he the respondent will on the day of open the SouthSea book next after  Christmas upon such transfer to be make as aforesaid or a tender thereof pay  or cause to be pay to the appellant the say sum of pound without any further  delay and it be thereby further agree that the respondent as a collateral  security for the payment of the say sum of pound shall deposit in the hand of  John baines of the Inner temple esquire for the benefit of the appellant a  receipt for pound in the first subscription to the SouthSea and another for  pound in the second subscription which receipt if the pound be not pay accord  to this agreement the say Mr baines be thereby authorize and empower by the  respondent forthwith to sell and dispose of for the appellant brown benefit  and the respondent further agree to make such payment upon the say  subscription as shall become due before the open of the SouthSea book next  after Christmas and for the true performance of the say several covenant and  agreement on the respondent part to be perform he thereby bind himself his  heir executor and administrator to the appellant his executor administrator  and assign in the penal sum of pound on this second agreement there be a  memorandum endorse purport that it be brown er p agree before execute the same  that in case the say pound stock shall be transfer before Christmas then the  respondent be to have the Christmas dividend and Mr baines likewise endorse a  memorandum on the say agreement that he acknowledge to have that day receive  of the respondent the say two subscription receipt and also a receipt from sir  Harcourt master to the respondent for pound for his subscription for pound  SouthSea stock at pound per cent which say several receipt Mr baines do  thereby promise to be Accountable for accord to the purport of the say article  the appellant have not pound either in annuity or other SouthSea stock in his  own name or right upon the say that of October nor any more than pound stock  the next open of the SouthSea transfer book be on the saint of may and the  appellant be sensible he have not stock sufficient to answer his say contract  he on the that of April procure Edmund miller sergeant at law to transfer to  he pound stock in the say company upon the appellant or his father in law Mr  George moult deposit with Mr sergeant miller SouthSea bind for pound and Mr  sergeant miller then give a note to deliver back either to Mr Moult or the  appellant the say SouthSea bind on the appellant retransferring to Mr sergeant  the like quantity of stock the appellant on the say saint of may do at the  transfer book tender pound stock but the same not be accept he on the that  retransferred to Mr sergeant miller the say pound stock and receive back from  he the pound SouthSea bind the appellant thereupon commence his action at law  against the respondent in the court of exchequer and the respondent exhibit  his bill in equity in the same court against the appellant and Mr baines to be  relieve against the contract of October and against the penalty of pound  therein mention for performance thereof and to have the two subscription  receipt and sir Harcourt master receipt deposit with Mr baines deliver up the  appellant by his first answer swear that he be on the say that of October well  entitle to or interest in pound stock arise by subscription of annuity though  he admit the same do not stand in his own name and that on the same that of  October he be also entitle to about pound original stock in his own name over  and above the say pound stock this answer be except to and report insufficient  the appellant put in a second answer wherein he confess that he have not pound  annuity stock in his own name and right but brown say that he have pound  annuity stock in Mr George moult name in trust for he this second answer be  also report insufficient the respondent amend his bill and make Mr Moult a  party in order to have a full discovery relate to this annuity stock accord Mr  Moult by his answer state the matter thus that the appellant upon his marriage  with Lucy Moult his daughter by indenture date the that of October assign and  transfer to Moult several exchequer annuity amount to pound per and and by  another indenture date the same day it be declare and agree that the transfer  of the say annuity be upon trust after the solemnization of the say marriage  that Mr Moult his executor and administrator shall permit and suffer the  appellant to receive the say annuity during his life and afterward they be to  be receive by the say Lucy during her life and from and after the decease of  the appellant and his wife then upon trust that Mr Moult his executor and  administrator shall make sale of the say annuity and pay the money raise by  sale thereof to such one or more of the child of the appellant by his say wife  as he shall by his last will and testament in write appoint and for want of  such appointment then to and among all and every such child and child in equal  share and proportion to the son at twentyone and to the daughter at eighteen  or marriage in which latter deed be contain a proviso that if the appellant  shall at any time then after during his natural life be desirous to sell the  say annuity or any of they and shall in write under his hand and seal attest  by two or more credible witness signify such desire to the say Mr Moult his  brown er p executor administrator and assign then it shall be lawful to and  for Mr Moult his executor administrator and assign if he or they shall so  think fit to sell the say annuity or any of they so as the purchase money  which shall be pay for the same shall be from time to time pay into the hand  of Moult his executor or administrator for the purchase of land or tenement or  any other security as the appellant and Moult his executor or administrator  shall approve of to be settle to the same trust intent and purpose and subject  to and under the same limitation as the say annuity so sell be by that deed  settle and assure limit or appoint and to no other trust intent or purpose  whatsoever and Mr Moult by his answer admit that the appellant acquaint he  with his have make the say first contract with the respondent and say that he  Moult be well satisfy therewith apprehend it to be a beneficial contract for  the appellant and his family afterward a act pass Geo I whereby it be enact  that every contract for the sale or purchase of subscription or stock of the  SouthSea company or any other company or corporation or pretend company or  corporation which shall be unperformed in whole or in part or shall not be  compound by or between the party thereunto or interest therein on or before  the that day of September or a abstract or memorial thereof brown sign by the  party interest therein and who shall be mind to take advantage of the same  shall be enter and register in book to be provide and keep for that purpose by  the respective company or corporation to who capital such stock or  subscription shall relate at some time before the saint day of November and in  default of such entry or register every such contract as to so much as shall  remain unperformed and not compound on or before the say that day of September  shall be void and that such entry shall express the name of the party or  person for who use or benefit such contract be make and it be also enact that  all contract for the sale and purchase of any subscription or stock of the say  SouthSea company or any other company or corporation which shall be  unperformed in whole or in part and not compound on or before the say that day  of September where the seller or the person on who behalf such contract be  make be not at the time of such contract or within six day after actual  possess of or entitle in his her or their own right to such subscription or  stock shall be and be thereby declare null and void with respect to so much  only of the say stock or subscription as the seller or the person upon who  account such sale be make be not possess of or entitle to as aforesaid after  this discovery as to the annuity the appellant put in a three answer wherein  he admit that he have not pound stock in his own name and right at the time of  make the first contract of the that of June but say that he have in his own  name and right on the say that of October pound capital stock in the say  company which with the dividend due thereon be all the annuity or other stock  he have in the say company in his own name and right on the say that of  October Mr baines the trustee in the second contract put in his answer admit  he have the say three receipt mention in the second contract and the  endorsement thereon the appellant register in the SouthSea book a memorial of  the contract make on the that of October which memorial mention that the say  contract be for the benefit of the appellant his wife and child the money  arise thereby be to be lie out in land to be settle for the use of the  appellant for life then to his wife for life and afterward to their issue and  this memorial be sign both by the appellant and his wife but the first  contract date the that of June be never register in Michaelmas term the  appellant prefer his cross bill pray a specific performance of the second  contract and to have the three receipt deposit with Mr baines deliver up or  sell both cause be at issue and several witness examine the same be hear in  Michaelmas term and after read several proof the appellant produce and prove  by his fatherinlaw Mr Moult a note in write date the that of brown er p may  sign by Mr Moult in these word videlicet may that I do hereby oblige myself my  heir executor and administrator to assign or transfer to my son Henry Thomson  of the brown Inner temple esquire or to his order all such capital stock in  the SouthSea company as shall be the produce of his subscribe in my name four  several annuity Payable out of the exchequer amount to pound per and and which  annuity be settle on my daughter and his wife by way of jointure and in bar of  dower in order to place the money that shall arise by such transfer or sale  out to interest and in trustee name till such time as a purchase of a good  estate of inheritance in land of the like yearly value of pound can be find  and purchase and settle on my say daughter for her life by way of jointure in  lieu of the say annuity of pound so settle as aforesaid and after to such use  as in and by the say marriage settlement relation thereunto be have more full  and at large may appear witness my hand the day and year above write george  moult this write be never mention either in the appellant or Mr moult answer  or in the appellant cross bill for which reason the respondent object to the  read it or at least that no regard ought to he have to it because it be not  put in issue nor be it pretend by the plead that Mr Moult have give any  authority to the appellant to sell the say stock neither can the same be any  authority to justify this contract it appear to be date before it be know what  stock or other effect will be give in lieu of the annuity and that it be a  breach of trust in Mr Moult in trust the appellant with the whole annuity  stock and the produce thereof in case of the appellant misapplication of it  when by the marriage article Mr Moult be only a trustee for receive the money  arise therefrom for the appellant his wife and child that such breach of trust  be the more notorious because by that write land of pound ayear only be to be  purchase with the money raise by such sale and the overplus be to go to the  appellant whereas the whole produce of the say annuity stock ought to have be  apply and lie out in trust for the appellant for his life and then for his  wife for her life and then for their child neither be the proviso in the deed  pursue which give Mr Moult the trustee a power to sell because the power to  sell be not to arise till it be request by the appellant by write under his  hand and seal execute before two credible witness and though the court permit  the say write to be read yet for the above reason they hold it be not  sufficient to make this trust stock to be the stock of the appellant so as to  answer the clause in the above act of parliament and therefore upon the whole  matter and upon full and mature consideration of all the proof that be read  and hear the counsel on both side which take up four day the whole court  except the Lord chief baron decree that the respondent shall pay to the  appellant pound per cent for pound stock and on payment thereof the appellant  be to transfer and Mr baines to deliver the deposit or assign with all profit  to the respondent or else Mr baines be to sell they towards satisfaction of  the debt brown and the cross bill be to be dismiss without cost and the  respondent be to pay the appellant interest from the saint of may and cost and  the appellant to account for the dividend and profit of pound stock from the  saint of may and the appellant to deliver up the contract on the respondent  payment of the money and a perpetual injunction be award to stay all further  proceed at law from this decree the appellant appeal insist I will W Hamilton  that the contract be very fair make without the least colour or pretence of  fraud or circumvention on his part or of surprise or ignorance on the part of  the respondent and therefore it ought in equity to have be perform or at least  the appellant legal remedy ought not to have be take away from he as it have  be for near two year without any security be give by the respondent to abide  the event of the cause as in such case be usual that as the contract be not  hard or unreasonable at the time of its be make neither be it so at the time  when it ought to have be perform and as the respondent have from time to time  respite the performance for his conveniency he ought in equity to bear the  loss of which he himself be the occasion that the appellant have contract  brown er p for the sale of SouthSea stock general be not confine to deliver  any particular species of that stock but the respondent have insist by his  bill that it be annuity stock which he contract for and have decline to accept  any other ought not to avoid that bargain which he himself decline perform  till he can have such stock that by the decree the defendant miller baines and  Moult be not allow their cost nor the appellant his upon his cross bill  through restrain by injunction from his remedy at law and which he insist  ought not to have be take from he there be no colour of fraud or circumvention  in the appellant which may have render the case proper for the cognizance of a  court of equity that the aforesaid act of parliament be intend only to avoid  fraudulent contract which the present one can not be pretend to be on the  appellant part and though the great fall of SouthSea stock may be a general  calamity to the nation yet as it be not just to relieve one subject against  law at the expense and ruin of another so neither can it be for the public  utility as to the objection that the appellant be not entitle in his own right  to pound stock on the that of October it be answer that the act do not require  the seller to be entitle to stock at any other time but that of the contract  for sale which be on the that of June and not on the that of October it be  impossible for the appellant to sell that stock on the that of October which  he have before sell on the that of June and therefore the agreement of the  that of October can not be take to be the contract for sale of the say stock  but as a agreement only to compound for the same in consideration of have  further time grant for payment of the money without interest and if take as a  contract compound it be except out of the act for all contract relative to  brown SouthSea stock be not contract for the sale or purchase of that stock  however to prevent any dispute the appellant have prove that he have even then  or within six day afterward pound stock in his own name and be entitle to the  pound annuity stock in the name of Mr Moult and to pound stock contract for  beside pound stock which he have then mortgage to the company for money he  have occasion he have to borrow on account of the respondent not perform his  contract at the time limit and as to the other objection that if the price of  stock have rise Mr Moult be a trustee for infant can not have be compel to  transfer it be answer that Mr Moult have by write under his hand before the  contract be make oblige himself to transfer to the appellant or his order in  performance of any contract which he shall make be thereby become a trustee  for the purchaser and bind to transfer that the appellant from a dependence  upon the respondent make good his agreement be induce not only to buy stock at  a very high price but to enter into several disadvantageous contract on which  judgement have be obtain for large sum of money and against which he can find  no relief whereby and by the respondent non performance of his agreement the  appellant be plunge into insuperable difficulty to the ruin of himself and  family on the other side it be contend t Lutwyche t reeve that the only  subsist contract be that of the that of October which be a new contract for  the sale of stock and not a composition of the prior contract of the that of  June and that this second contract be the only contract register accord to the  act of parliament that at the time of such contract the appellant be possess  of no more than pound stock for he can not be say to be entitle to the trust  stock in his own right agreeable to the act and if the price of stock have  rise the respondent can not have compel Mr Moult to transfer the same  notwithstanding the note of the that of may that note appear in itself to be a  breach of trust and not pursuant to the power that the appellant cross bill be  improper be to have a specific performance of so hard and agreement as to be  pay pound for that which be not worth pound and therefore a court of equity  will not give any assistance to such a agreement but the respondent bill be  proper it be to be relieve against the penalty and likewise to have the  deposit that by the decree the appellant must be pay by the respondent near  pound for at most pound stock with his interest and cost and the appellant be  thereby allow even the midsummer dividend of pound per cent which by the  agreement of the that of October be to be include and give to the respondent  brown er p so that the appellant have receive considerable indulgence from the  decree and may very well have acquiesce under it accord after hear counsel on  this appeal it be order and adjudge that the same shall be dismiss and brown  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