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agreed, before executing the same, that in case the said £1000 stock should be transferred before Christmas, then the respondent was to have the Christmas dividend. And Mr. Baynes likewise indorsed a memorandum on the said agreement, that he acknowledged to have that day received of the respondent the said two subscription receipts, and also a receipt from Sir Harcourt Master to the respondent, for £1000 for his subscription for £1000 South-Sea stock at £1000 per cent.; which said several receipts, Mr. Baynes did thereby promise to be accountable for, according to the purport of the said articles.

The appellant had not £1000 either in annuity, or other South-Sea stock, in his own name or right, upon the said 5th of October 1720, nor any more than £290 stock.

The next opening of the South-Sea transfer-books was on the 1st of May 1721, and the appellant being sensible he had not stock sufficient to answer his said contract, he, on the 27th of April 1721, procured Edmund Miller, Serjeant at Law, to transfer to him £1100 stock in the said Company, upon the appellant, or his father-in-law, Mr. George Moult's depositing with Mr. Serjeant, Miller, South-Sea bonds for £1500; and Mr. Serjeant Miller then gave a note, to deliver back either to Mr. Moult, or the appellant, the said South-Sea bonds, on the appellant's re-transferring to Mr. Serjeant the like quantity of stock.

The appellant on the said 1st of May 1721, did, at the transfer-books, tender £1100 stock; but the same not being accepted, he, on the 4th, re-transferred to Mr. Serjeant Miller the said £1100 stock, and received back from him the £1500 South-Sea bonds.

The appellant thereupon commenced his action at law against the respondent, in the Court of Exchequer, and the respondent exhibited his bill in equity in the same court, against the appellant and Mr. Baynes, to be relieved against the contract of October 1720, and against the penalty of £6000 therein mentioned, for performance thereof, and to have the two subscription receipts, and Sir Harcourt Master's receipt, deposited with Mr. Baynes, delivered up.

The appellant, by his first answer, swore, that he was on the said 5th of October 1720, well intitled to, or interested in £2000 stock, arising by subscription of annuities, though he admitted the same did not stand in his own name; and that on the same 5th of October, he was also intitled to about £300 original stock in his own name, over and above the said £2000 stock.

This answer being excepted to, and reported insufficient, the appellant put in a second answer; wherein he confessed, that he had not £1000 annuity-stock in his own name and right; but [195] said that he had £2310 annuity-stock in Mr. George Moult's name, in trust for him.

This second answer being also reported Insufficient, the respondent amended his bill, and made Mr. Moult a party, in order to have a full discovery relating to this annuity-stock.

Accordingly, Mr. Moult, by his answer, stated the matter thus: That the appellant, upon his marriage with Lucy Moult, his daughter, by indenture dated the 26th of October 1711, assigned and transferred to Moult, several Exchequer annuities, amounting to £300 per ann. And by another indenture, dated the same day, it was declared and agreed, that the transfer of the said annuities was upon trust, after the solemnization of the said marriage, that Mr. Moult, his executors and administrators, should permit and suffer the appellant, to receive the said annuities, during his life; and afterwards they were to be received by the said Lucy, during her life; and from and after the decease of the appellant and his wife, then upon trust, that Mr. Moult, his executors and administrators, should make sale of the said annuities, and pay the money raised by sale thereof, to such one or more of the children of the appellant by his said wife, as he should, by his last will and testament in writing, appoint; and for want of such appointment, then to and amongst all and every such child and children, in equal shares and proportions; to the sons at twenty-one, and to the daughters at eighteen, or marriage. In which latter deed was contained a proviso, that if the appellant should, at any time then after, during his natural life, be desirous to sell the said annuities, or say of them, and should, in writing under his hand and seal, attested by two or more credible witnesses, signify such desire to the said Mr. Moult, his