Page:The English Reports v1 1900.pdf/527

Mar 1720, signed by Mr. Moult, in these words: viz.

May 5th, 1720, I do hereby oblige myself, my heirs, executors, and administrators, to assign or transfer to my son. Henry Thomson, of the Inner-[197]-Temple, esq. or to his order, all such capital stock in the South-Sea company, as shall be the produce of his subscribing in my name, four several annuities, payable out of the Exchequer, amounting to £300 per ann. (and which annuities were settled 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 trustees names, till such time as a purchase of a good estate of inheritance in lands, of the like yearly value of £300 can be found, and purchased and settled on my said daughter for her life, by way of jointure, in lieu of the said annuities of £300 so settled as aforesaid; and after, to such uses as in and by the said marriage settlement (relation thereunto being had) more fully and at large may appear. Witness my hand the day and year above written. George Moult.

This writing was never mentioned, either in the appellant's or Mr. Moult's answers, or in the appellant's cross bill, for which reason the respondent objected to the reading it; or, at least, that no regard ought to be had to it, because it was not put in issue; nor was it pretended by the pleadings, that Mr. Moult had given any authority to the appellant, to sell the said stock, neither could the same be any authority to justify this contract, it appearing to be dated before it was known what stock or other effects would be given in lieu of the annuities; and that it was a breach of trust in Mr. Moult, in trusting the appellant with the whole annuity-stock and the produce thereof, in case of the appellant's misapplication of it; when, by the marriage articles, Mr. Moult was only a trustee for receiving the monies arising therefrom for the appellant, his wife, and children: that such breach of trust was the more notorious, because by that writing, lands of £300 a-year only, were to be purchased with the monies raised by such sale, and the overplus was to go to the appellant; whereas, the whole produce of the said annuity-stock ought to have been applied and laid out in trust for the appellant for his life, and then for his wife for her life, and then for their children; neither was the proviso in the deed pursued, which gave Mr. Moult, the trustee, a power to sell; because the power to sell was not to arise till it was requested by the appellant, by writing under his hand and seal, executed before two credible witnesses.

And though the Court permitted the said writing to be read, yet, for the above reasons, they held it was 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 there fore upon the whole matter, and upon full and mature consideration of all the proofs that were read, and hearing the counsel on both sides, which took up four days; the whole Court, except the Lord Chief Baron, decreed, That the respondent should pay to the appellant £920 per cent. for £290 stock; and on payment thereof, the appellant was to transfer, and Mr. Baynes to deliver the deposits, or assign, with all profits, to the respondent; or else, Mr. Baynes was to sell them towards satisfaction of the debt. [198] And the cross bill was to be dismissed without costs, and the respondent was to pay the appellant interest from the 1st of May 1721, and costs; and the appellant to account for the dividends and profits of £290 stock, from the 1st of May 1721, and the appellant to deliver up the contract, on the respondent's payment of the money; and a perpetual injunction was awarded to stay all further proceedings at law.

From this decree the appellant appealed, insisting (J. Willes, W. Hamilton), that the contract was very fairly made, 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 been performed, or at least the appellant's legal remedy ought not to have been taken away from him, as it had been for near two years, without any security being given by the respondent to abide the event of the cause, as in such cases is usual: that as the contract was not hard or unreasonable at the time of its being made, neither was it so at the time when it ought to have been performed; and as the respondent had from time to time respited the performance for his conveniency, he ought, in equity, to bear the loss, of which he himself was the occasion: that the appellant having contracted