Page:The English Reports v1 1900.pdf/524
[193] Case 20.—Henry Thomson,—Appellant; Richard Harcourt,—Respondent [18th February 1722].
Viner, vol. 5. p. 548. ca. 9.
During the time of the wicked execution of the South-Sea scheme, and of the general infatuation thereby occasioned, it was, by writing, dated the 18th of June 1720, under the hands of the appellant and respondent, agreed, that the appellant, at the then next opening of the books of the South-Sea Company, or as soon after as the annuities then subscribed into the said Company should be transferrable, should assign and transfer to the respondent, £1000 South-Sea stock; and that he should immediately, upon such transfer, pay the appellant, £9200 for the same.
The first opening of the transfer-books, for transferring annuity-stock, was not till the 5th of October 1720, and then the appellant representing to the respondent, that he, the appellant, had stock ready to deliver according to the said contract, and threatening to proclaim the respondent, and tender the said stock; and the respondent, relying on the appellant's representation to be true, and that he then really had the said stock; they came to a second agreement, under their hands and seals, dated the same 5th of October 1720, reciting the first agreement, and that the time for accepting the said stock expired on that day; that it would be very inconvenient for the respondent to accept and pay for the same, according to the time prefixed by the said first agreement; and that the respondent had therefore applied to the appellant for a longer time for accepting the same, who had been prevailed upon to consent thereto, upon the terms after mentioned: it was thereby agreed, that the appellant should, on the day of opening the South-Sea books, next after Christmas 1720, or sooner, if demanded by the respondent, and upon payment of the said sum of £9200 in manner after mentioned, transfer to the respondent £1000 South-Sen stock, with the dividend due thereon at Midsummer then last only; and the respondent did thereby covenant, promise, and agree, to and with the appellant, that he, the respondent, would, on the day of opening the South-Sea books, next after Christmas 1720, upon such transfer to be made as aforesaid, or a tender thereof, pay, or cause to be paid to the appellant, the said sum of £9200 without any further delay. And it was thereby further agreed, that the respondent, as a collateral security for the payment of the said sum of £9200, should deposit in the hands of John Baynes, of the Inner-Temple, esq. for the benefit of the appellant, a receipt for £1000 in the first subscription to the South-Sea, and another for £500 in the second subscription, which receipts, if the £9200 was not paid according to this agreement, the said Mr. Baynes was thereby authorised and empowered by the respondent, forthwith to sell and dispose of for the appellant's [194] benefit and the respondent further agreed, to make such payments upon the said subscriptions, as should become due before the opening of the South-Sea books, next after Christmas 1720: and, for the true performance of the said several covenants and agreements, on the respondent's part to be performed, he thereby bound himself, his heirs, executors, and administrators, to the appellant, his executors, administrators, and assigns, in the penal sum of £6000. On this second agreement, there was a memorandum indorsed, purporting, that it was
worth forty years purchase to one man, that is worth but twenty to another: but this point was left doubtful.—But they all agreed in the second point, viz. that since the title was not made out by the 29th of September, as the respondent undertook by his covenant, there was no occasion to determine the other great point; for the respondent not having proved that he had made out the title by the time covenanted, could not intitle himself to the purchase-money; and the proofs for this could not be read because they were not read in the Exchequer, and the appellant's admittance of that matter was not entered."
Note. The reporter does not say, whether the decree was reversed or affirmed.
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