Page:The English Reports v1 1900.pdf/526

executors, administrators, and assigns; then it should be lawful to and for Mr. Moult, his executors, administrators, and assigns, (if he or they should so think fitting,) to sell the said annuities, or any of them, so as the purchase-money which should be paid for the same should be, from time to time, paid into the hands of Moult, his executors or administrators, for the purchasing of lands or tenements, or any other securities, as the appellant and Moult, his executors or administrators, should approve of, to be settled to the same trusts, intents, and purposes, and subject to and under the same limitations, as the said annuities so sold were by that deed settled and assured, limited or appointed, and to no other trust, intent, or purpose whatsoever. And Mr. Moult, by his answer, admitted, that the appellant acquainted him with his having made the said first contract with the respondent; and said that he (Moult) was well satisfied therewith, apprehending it to be a beneficial contract for the appellant and his family.

Afterwards an act passed 7 Geo. I. whereby it was enacted, That every contract for the sale or purchase of subscriptions or stock of the South-Sea company, or any other company, or corporation, or pretended company or corporation, which should be unperformed, in whole or in part, or should not be compounded by or between the parties thereunto, or interested therein, on or before the 29th day of September 1721; or an abstract or memorial thereof, [196] signed by the party interested therein, and who should be minded to take advantage of the same, should be entered and registered in books, to be provided and kept for that purpose, by the respective company or corporation to whose capital such stock or subscriptions should relate, at some time before the 1st day of November 1721; and, in default of such entry or register, every such contract, as to so much as should remain unperformed, and not compounded, on or before the said 29th day of September 1721, should be void: and, that such entries should express the names of the parties, or persons, for whose use or benefit such contracts were made.

And it was also enacted, That all contracts for the sale and purchase of any subscription, or stock of the said South-Sea company, or any other company or corporation, which should be unperformed, in whole or in part, and not compounded, on or before the said 29th day of September 1721, where the seller, or the person on whose behalf such contract was made, was not at the time of such contract, or within six days after, actually possessed of, or entitled in his, her, or their own right, to such subscription or stock, should be, and was thereby declared null and void, with respect to so much only of the said stock or subscription, as the seller, or the person upon whose account such sale was made, was not possessed of, or entitled to, as aforesaid.

After this discovery as to the annuities, the appellant put in a third answer; wherein he admitted that he had not £1000 stock in his own name and right, at the time of making the first contract of the 18th of June 1720; but said, that he had in his own name and right, on the said 5th of October 1720, £200 capital stock in the said company, which, with the dividends due thereon, was all the annuity or other stock he had in the said company, in his own name and right, on the said 5th of October 1720.

Mr. Baynes, the trustee in the second contract, put in his answer, admitting he had the said three receipts mentioned in the second contract, and the indorsement thereon.

The appellant registered, in the South-Son books, a memorial of the contract made on the 5th of October 1720; which memorial mentioned, That the said contract was for the benefit of the appellant, his wife and children, the money arising thereby being to be laid out in lands, to be settled for the use of the appellant for life, then to his wife for life, and afterwards to their issue: and this memorial was signed both by the appellant and his wife. But the first contract, dated the 18th of June 1720, was never registered.

In Michaelmas term 1721, the appellant preferred his cross bill, praying a specific performance of the second contract, and to have the three receipts deposited with Mr. Baynes, delivered up, or sold.

Both causes being at issue, and several witnesses examined, the same were heard in Michaelmas term 1722: and, after reading several proofs, the appellant produced and proved, by his father-in-law, Mr. Moult, a note in writing, dated the 5th of